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Chapter 3 Debt Collection Depositions and Memoranda (CT)

Joanne S. Faulkner is in solo practice in New Haven, Connecticut, restricted to consumermatters, preferably for persons who cannot afford to pay a lawyer. She is a past chair of the

Consumer Law section of the Connecticut Bar Association and currently editor of its newsletter.She was a member of the Federal Reserve Board's Consumer Advisory Counsel, and has servedon advisory committees to the Connecticut Law Revision Commission. She was on the Board of Directors of the National Consumer Law Center and is presently a trustee thereof.

Ms. Faulkner frequently lectures for the Connecticut Bar Association on consumer laws,and has assisted NCLC in updating various manuals, including its Fair Debt Collection,Odometer Law Manual, Equal Credit Opportunity Manual, Fair Credit Reporting Act Manualand supplements. Her successes include Connecticut v. Doehr, 111 S.Ct. 2105 (1991) (dueprocess, prejudgment attachments) and Clomon v. Jackson, 988 F.2d 1314 (2d Cir. 1993)(FDCPA violated by attorney who allows collection agency to use his name.). Ms. Faulkner is agraduate of Cornell Law School (LL.B. 1963), admitted to practice in New York in 1963, and in

Connecticut in 1967.Section 3.1 is a deposition of a collection lawyer involved in collecting the plaintiff

consumer’s account and § 3.2 is the deposition of the collection lawyer who is the owner of thecollection firm that employed the first lawyer deposed. The depositions illustrate some of thedifficulties of determining basic facts in a debt collectors’ depositions.

Section 3.3 is a memorandum in support of a motion for partial summary judgment inanother FDCPA case. It argues that the check collector violated the Fair Debt CollectionPractices Act and the Connecticut debt collection statutes by alleging illegally excessive chargeswere due,1 by falsely threatening criminal and civil proceedings,2 and by threatening to obtainpersonal information from the state department of motor vehicles from the consumer’s socialsecurity number. Section 3.4 is a reply memorandum in support of summary judgment on the

same issues and alleging additional violations: failure to disclose a second alleged creditorinvolved in the alleged debts and seeking “restitution” when the amount of the collector’s claimincluded illegal collection charges. The reply memorandum also states that the consumer’sclaims for deception satisfy the state law requirement of ascertainable loss and argue for punitivedamages under state law.

A memorandum of law in support of summary judgment in another suit involvingdifferent alleged debts is in § 3.5. It alleges violations of the Fair Debt Collection Practices Actand state debt collection statutes by collecting without a state debt collection license, contactinga consumer known to be represented by counsel, demanding excessive amounts, and threateningto sue on a time barred debt. The argument that unlicensed collection violates the FDCPA is anuphill battle.

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1 See National Consumer Law Center, Fair Debt Collection Practices § 5.5.3.2 (5th ed. 2004)2 See Id. §§ 5.5.7, 5.5.9.3 See National Consumer Law Center, Fair Debt Collection § 5.5.8.5 (5th ed. 2004).

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3.1 Deposition of Collection Lawyer (PDF format)

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v. BRANDON September 5,20 03

Page 1UNITED STATES DISTRICT COURT

Plaintiff,

-versus-

MARVIN BRANDON,

Defendant.

: Civil Action

: 3:02CV 1537 (AVC)

Deposition of MARV BRANDON, taken

pursuant to the Federal Rules of Civil Procedure,

at the law offices of KLEBAN & SAMOR,-

, Southport, Connecticut, before Lynn

Muscatello, a Notary Public in and for the State

of Connecticut on September 5, 2003, at 1:12 p.m.

SANDERS, GALE & RUSSELL (203)624-4 15 7

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V. BRANDON September 5,200 3

I Page

1 A. Jack Boyajian.2 Q. Who were the other officers?3 A. He was the only officer I knew.

. 4 Q. You said you got a job there in January5 1999; how did you acquire that job?6 A. Through a newspaper ad.

7 Q. What did the newspaper ad say ?8 A. Oh, I don't recall. This goes back.9 Q. Was it an ad for a lawyer?

10 A. Yes.11 Q. Was it an ad with a lawyer fo r collection12 experience?13 A. I don't recall.14 Q. Who was the owner of JBC, P.C.?15 A. Jack Boyajian is a principal.16 Q. Is there other principals?17 A. I can't give you an answer to that18 because I don't know. I assum e he's the only

19 principal.20 Q. What does JBC stand for?21 A. I don't know . It's just initials.22 Q. Are you a full-time emp loyee?23 A. Yes.24 Q. Do you have an outside practice of law?25 A. I do some collection work for myself

-*Page 7

outside of the firm.Q. Do you have a firm nam e?A. No. I use my own name. My own

letterhead.Q. Where were you admitted to practice?A. I'm admitted to practice in New Jersey,

Florida, and New York.Q. Is Mr. Boyajian an attorney?A. Yes.Q. Do you know where he went to law school?A. 1 believe he went to R utgers.Q. When did he became an attorney?A. 1 don't know the date.Q. Five years ago, two years a go, do you

have any idea?A. It would be, on speculating, two or

three, three years ago at least.Q. And where is he admitted to practice?A. California.Q. So you think he's been admitted to

practice from C alifornia for a couple o f years?A. Yes.Q. JBC and Associates has an office in

California?A. Yes.

Page 8

Q. Have you been there?A. No.

(Discussion off the record.)Q. Do you recognize the name Dan Wagner

(phonetically)?A. Dan Wagner?

Q. Right.A. No.Q. Ho w many employees are at the California

office?A. I have no idea.Q. Does M r. Boyajian spend most of his time

in California, or is he in the east?A. He sp ends the majority of his time in New

Jersey.Q. How often doe s he go to the California

office?A. There is no spec ific day that he goes out

there. During the mon th I guess he go es out therewhen he needs to.Q. What is the purpose o f having a

California office?A. I don't know.Q. Is that required for licensing in

California?

Page 9

A. I don't know.Q. Does Mr. Boyajian ever use any other name

other than Boyajian?A. Not to my knowledge.Q. Does he use the name Boyd?A. Not to my knowledge.Q. You also have an office in Boston

according to the letterhead. Have you been there?A. No.Q. How many people are employed at the

Boston office?A. I have no idea.Q. Who w ould know those things about the

employment information?A. Mr. Boyajian.Q. Who is located at your B oston office?

A. There is one attorney that I know of. Idon't know his name .

Q. I take it you haven't met him since youdon't know his name ?

A. I never met him. I've never been to theBoston office, no.

Q. There is also a New York office; have youbeen to the New York office?

A. No.

SANDERS, GALE & RUSSELL

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0 . BRANDON September 5,2003

Page I (

Q. Who is located in the New York Cityoffice?

A. Oh, I don't know.Q. Do you recognize the name Carty

(phonetically)?A. No, not offhand.

Q. How many lawyers are at the New Jerseyoffice?

A. Two.Q. And who are they?A. Jack Boyajian and myself.Q. Is Jack Boyajian admitted in New Jersey?A. No.Q. Does his name appear on the letterhead as

being admitted in New Jersey?A. No.Q. How many em ployees do you have at the New

Jersey office?A. I would -- I shouldn't guess. Total

employment I would assume is around -- offhand Iguess would be about a hundred.

Q. What categories do those employees fallinto? For instance, bookkeeper, collector,administrator?

A. There is some in the administration,-Page I I

1 there are people who do collection work, and two2 attorneys.3 Q. Is there a manager for that office?4 A. Yes.5 Q. Who is that?6 A. Steve. I forgot his last name.7 Q. What are his job duties?8 A. I don't know.9 Q. What does the prem ises look like?

10 A. They occupy the full sixth floor of a11 seven-sto ry building.12 Q. Do you have your own office?13 A. Yes.14 Q. Do the collectors each have their own15 office?16 A. No.

17 Q. What does the collector's part o f the18 building, of the floor, look like?19 A. They have individual desks with phones20 and dividers on the floor.2 1 Q. What do you mean dividers on the floor?22 (Discussion off the record.)23 Q. Like six-foot-high partitions with all

W4 the collectors in one big room that's partitioned?!5 A. Yes. Like you see in high buildings.

I

Page 1:

Q. Are you there all day everyday?A. No.Q. Wh at are your hours?A. Nin e to five thirty usually.Q. Is that Monday through Friday?A. No. At present I'm only working three

days a week.Q. Which three days?A. It depends. It varies; let's put it that

way. That's the best answer I can give. Itdepends on whether I have to g o to court or not.Convenience of the firm, my convenience. So itvaries from week to w eek.

Q. What would be a typical day for you atthe office?

A. I'm responsible for handling letters fromattorneys concerning collection of debt. Lettersand faxes that come in, I respond to them.

Whenever an attorney calls, the call is sent tome. So I respond to attorneys legally.Q. Are you responding t o people who are

collecting for JBC, or are you responding toopposing attorneys or both?

A. Opposing attorneys. Som etime s whenattorneys are collecting for us and they hav e a

Page 1 3

question, the call would be put into me.Q. So the staff has instruction that

whenever a attorney calls, the call is to beswitched to you?

A. Yes.Q. Do you have any training responsibilities

at the office?A. No.Q. Who does the training for the collectors?A. I don't know offhand.Q. Have you ever --A. -- I don't get into that area usually.Q. Have you yourself been trained after you

got to this office in collection law?A. No.Q. Have you joined any organizations that

would be involved with collection law?A. I belong to the ACA , American C ollectorsAssociation, map attorney, map branch.

Q. Does JBC belong to the regular branch?A. No. I just belong to it as a

representative of JBC.Q. Does M r. Boyajian belong to either

branch?A. No. It's all questions of maps.


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V. BRANDON

Page 1'1 Q. Have you had any other training in FDCPA'.2 A. I've had experience from collection work

prior to my coming to JBC.Q. What type of collection work does JBC do?A. The majority of it is bad checks.Q. Would it be fair to say that that's a

specialty of JBC, collecting bad checks?A. It might.Q. What other types of collection doe s JBC

do?A. The majority of it is bad checks. We do

some other collection work, but I would say themajority is bad checks.

Q. Does JBC buy the bad checks?A. In some instances we work as an agent or

an attorney for the client. In some instances --well, no, JBC itself does not buy bad checks. Wework a s an attorney for clients.

Q. Who are some of your typical clients?A. Som e typical clients would be Toy s R Us,c v s .

Q. Can you think of any others?A. CVS Drugs, Toys R Us. There are some

other clients, but offhand I can't -- WilsonSuede, M arshalls, Blockbuster.

Page 1:

Q. Is Marshalls related to C VS ?A. I don't know the relationship . I don't

know exactly what the relationship is. I can'tcomm ent on it.

Q. Is there a relationship; do you know?A. I don't think there is one.Q. How about W ilson Suede, is there a

relationship to CV S?A. I don't know exactly what the

relationship is.Q. Do you know whether there is a

relationship?A. I don't.Q. Okay. How about Melville (phonetically),

is there a relationship between Melville andWilson or M arshalls that you kn ow of?

A.I

don't.Q. Is there a relationship between Melvilleand CVS?

A. I don't know what the relationship is. I

can't comm ent on that. I don't get into therelationships. You would have to ask Mr. Boyajianwhat the relationship is.

Q. Do you know whether there is one or not?A. I don't, so I can't comment on it.

September 5,2 00 3

Page 1Q. That's fine. Do you have any superviso ry

responsib ilities as far as the collectors areconcerned?

A. No.Q. Who supervises the collectors?A. Steve. And I forget his last name. I

could get it for you.Q. Are the collec tors divided into teams at

all?A. As far as I know, no.Q. Do you recogn ize the name Karen Hopkins?A. Yes.Q. Who's that?A. She performs duties, a paralegal. And I

work with her sometimes.Q. What type of duties does she perform?A. She prepares papers for lawsuits where we

are the attorneys who are suing. She forwardscases to attorneys where we have forwardingattorneys who bring suits other than New Y ork, NewJersey.

Q. Do you have retain er agreemen ts with thecreditors on whose behalf you bring suit?

A. I can't answer that. I don't know.Q. You pe rsonally do not have any such

Page 1

retainer agreement; is that correct?A. No, I do not.Q. Okay. Were you with JBC when it was at

33 Wood Avenue in Iselin?A. Wood Avenue, S outh Iselin, New Jersey,

yes.Q. When did it move to Bloomfield?A. I guess about two years ago. I think

it'll be two years in December, December orJanuary.

Q. Do you recognize the name JackCilingaryan (phonetically)?

A. Yes.Q. Who's he?A. I replaced Jack Cilingaryan. He left the

firm when I came on board. He was a New Jersey

attorney.Q. And is he still a Ne w Jersey attorne y?A. As far as I know, yes.Q. Do you recognize the name V ito Capio

(phonetically)?A. No.Q. How ab out Anthony Esposito?A. No.Q. Out Source Recovery M anagement?

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v. BRANDON September 5 ,2003

Page 11A. I recognize the nam e, but I can't -- I

don't know what the function is.Q. Does JBC have any divisions that are

differently named, for instance, have a tradename?

A. JBC and Associates, P.C.?

Q. Right.A. No, not that I know.Q. Do you recognize the name G&L Financial?A. No. I've never heard that since I've

been at JBC.Q. Have you heard of Goldman and Levine?A. Who?Q. Goldman and Levine?A. No.Q. Have you heard of Goldman and Com pany?A. Who?Q. Goldman and Company?

A. I've heard the name, but I can't placewhere I've heard it.Q. Does Barry Sussman have any relationship

to JBC?A. No.Q. Has he ever?A. Not since I've been there.

vPage 19

Q. Do you know who Barry Sussman is?A. I read a new spaper report concerning

Mr. Sussman. He's in the collection business.Q. Right. How about Brian Sussman?A. No, never heard of that name.

(Plaintiffs Exhibit A entered foridentification: A one-page waiver of service ofsummons.)

Q. Mr. Brandon, you just said you neverheard of G&L Financial or Goldman and Levine. AndI'm showing you what's marked as PlaintiffsExhibit A, which is United States of Americaversus G&L Financial Services consent decree.Have you seen that before?

A. No.Q. Would you look at the second to the last

page. Is that a signature of Jack Boyajian?A. Yes.Q. Would you look at Plaintif fs Exhibit A.A. This page?Q. Yes. That's entitled waiver of service

of summons. Does that contain the signature ofJack Boyajian?

A. Yes. It appears to be his signature.Q. Up at the top there is a fax indicator

Page 2(

from M urphy, Pearson, Bradley and Foa nay; do yourecognize that name?

A. Yes.Q. Who are they?A. That's a law firm in California.Q. Does JB C work with that law firm?

A. Do we work with them?Q. Yes.A. Yes. They did some work for us in

California.Q. They represented JBC in C alifornia?A. Yes.Q. And ab ove that there is a fax indicator

for CMG; do you recognize that?A. I think it's being covered up by the

little sticker. Mayb e CM G. No, I don't know whatthat means.

Q. Does C reative Management Group mean

anything to you?A. No.Q. Would you recogn ize the name of any

collectors?A. Would I recognize the names of any

collectors?Q. Right. Or can you name some of them why

Page 2 1

don't we put it that way?A. No . I don't spend any time with the

collectors. I really don't know their names.Q.

When a call is being transferred to youdoes so meo ne say this is Miss Scott; attorney soand so is on the line or?

A. Usually the collectors will write dow nthe name of the attorney, the nam e of the debtor,and the file name and give it to me.

Q. They physically give it to you?A. Yes.Q. What do you do once you have those three

pieces of information?A. Return the phone call and find out why

the call was made.Q. Do yo u have access to the client's

records, I mean the debtor's records when yo ureturn the phone call?

A. Yes. On a compu ter screen.Q. When the collector gives the first bit of

information to you about the attorney, is thatdone by c ompu ter screen or by a piece of paper?

A. Piece of paper.Q. Then in your office you have a computer,

and you look up the file number for the debtor?


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0 .BRANDON September 5, 2003

1 Page 2A. Tha t's correct.

2 Q. Then you make the phone call?

1 A. Yes.Q. And a re you able to read the consume r's

records on your comp uter screen?A. Yes. The information we have on the

file. I bring the file up.Q. And are you able to enter information

into that computer record?A. Yes.Q. What type of information could yo u ente r?A. I would, if the phone call was important,

I would enter what the phone call was ab out.Q. Would you enter the date and time or is

that all?A. The computer does that automatically.Q. Would you enter your nam e or initials?A. No. The comp uter does that.

Q. So the computer knows what terminal isentering the information autom atically; is thatcorrect?

A. I believe so, yes.Q. Do you personally ever decide to send

letters to debto rs?A. Well, are we talking about collection

Page 2

letter?(Discussion off the record.)

A. You just ge t into Micro Soft Word andtype in a letter, or I have Karen H opkins print itfor me.

Q. So it goes directly out of your own

office?A. Or I give it to Karen, and she prints

it. I sign it, and she sends it.Q. Now, with regard to the form co llection

letters, how do those go out?A. I'm not too fam iliar with the process,

but the information comes in from the clien ts.And Jack Boyajian would review it. And he woulddetermine if we have sufficient information and ifthe accoun t is -- what letter should be sent tothe debtor. He makes that determinationfirsthand . And the letter is sent out if we have

enough inform ation and if we verified theinformation as to where the debto r lives, how muchis the amount, we have su fficient back-upinformation. And he would make that determinationusually.

Q. So he would sit at the co mputer screenand push the buttons to have a letter generated?

Page 2:

letters?Q. Yes.A. Usually Jack Boyajian makes that

decision. He reviews the accounts.Q. How many accounts would you have in your

office at any given time?A. I have no idea. I couldn't even

specu late on that.Q. If you have a hundred collectors how many

accounts on average would they be w orking; do youknow?

A. I have no knowledge of the num ber ofaccounts or number of ac counts that a collectorwould have.

Q. If you entered this information on thescreen and saw that a letter should go out to

somebo dy, perhaps to the attorney, do you havethat authority to create such a letter?

A. If I'm corre spon ding with an attorney,yes. I usually deal with the attorneys.

Q. So you don't have to go to M r. Boyajianfor review, can I send this letter out to attorneyso and so?

A. It would be very unusual.Q. What is the process to print out a

Page 2!

A. Yes. Initially he reviews it, yes.Q. But he doesn't send ou t every letter?A. I don't know. I've never done it with

him.Q. Does a collector have authority to sendout a letter?

A. To my knowledge, no.Q. Are letters sent out on a n automatic time

basis?A. I'm not familiar with the process of how

it's actually done.Q. You yourself don't revie w any of the

letters that are sent to debtors; is that correct?A. That's correct. Mr. Boyajian reviews

them.Q. Your letters are printed in M ichigan; how

does that process take place?A. I don't know . I would assu me that the

information is given to the printer by com putertape or disk.

Q. Does JBC have fo rm letters withfill-in-the-blank variables?

A. I can't com men t on that. I don't know.Q. Is it something M r. Boyajian would know?A. I assume, yes.

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V. BRANDON

Page 2f

41 Q. Is there anybody else that would know?2 A. Anybody else who would know?

Q. Yes.A. I don't know.Q. When you're observ ing the colle ctors I

presume you can see them as you come in and out of

the office; are they mostly on the telephone?A. Oh, yes.

(Plaintif fs Exhibit B entered foridentification: A one-page sample letter.)

Q. That was produced by you in discov ery asa sample of the first letter that goes out fromJBC; is that correct?

A. Yes. It has the validation clause at thebottom.

Q. And that has your facim ile signature onit; is that correct?

A. That's correc t.

Q. That is not your real signature?A. That's correct.Q. Up at the top above the area that's

blocked out there is a serial number . Looks like00 1CT?

A. Yes.Q. Does that indicate it was a letter

Page 27

drafted to go to a C onnecticut resident?A. I can't tell you. I don't know to my

knowledge. I assume CT means Connecticut.

Q. Did you draft this letter?A. I may have drafted it in conjunction withMr. Boyajian.

Q. Did you research the conte nts of theletter?

A. You'll have to explain that question.Q. There is a reference in the second

paragraph to a Connecticut general statute?A. Right. I don't know if I did it or

Mr. B oyajian did it, but I assume that one of usdid it because it's factual.

Q. You don't remem ber doin g it yourself?A. No.

Q. The middle paragraph says you're liablefor the full amount of each check plus a servicecharge of twenty dollars per check. W ho imposesthe twenty dollars?

A. I don't understand the question.Q. Does your office add the twenty dollars,

or does the creditor I guess who's blocked out addthe twenty dollars?

A. I don't know whether it's done by statute

September 5,2003

Page 28

1 or that's a twenty dollar fee that we may be2 entitled to.3 Q. Do you know whether your office adds the4 twenty do llars or whether it's already added when5 you get the account?6 A. Oh, I believe we add it.

7 Q. Your o ffice adds the twenty dollars?8 A. I believe so.9 Q. The second sentenc e says if you do not

t 0 make payment you may be sued to recover payment.11 It looks lik e the total amount here is a hundred12 thirty-fiv e dollars and sixty-th ree cents. Has13 Mr. Boyajian made the decision to sue when this14 letter goes to the con sumer?15 A. Has he mad e -- I'm sorry. Your question16 is has he made the decision at the time ? I don't17 know. I can't comment on what his decision is.18 Q. Well, your signature is on the letter.

19 And you have made a statement of fact that if you!O do not make payment you may be sued to recover!1 paym ent. Do you intend to sue when that letter!2 goes out?!3 A. Which sentenc e are you alluding to?!4 Q. The second sentence, if you do not make!5 payment, second sentence in the middle paragraph?

Page 29

A. (No audible response.)Q. Th is is a very long pause. Is there

something wrong?

A. No. It's up to Mr. Boyajian whether hewants to sue or not.Q. Okay. So when this letter goes out under

your letterhead you don't have any intent to sue;is that correct? That's a yes or no.

A. Do I have the intent to sue? The answerwould be no.

Q. Let's look at the third sentence. If ajudgment is rendered against you in court it maynot only include the original face amount butadditional damages. It goes on to mentionadditional damages. What is the basis for yourstatement that additional damages could be

entered?A . I would have to see the statute, 52565A.Q. When you send that letter out are you

aware w hether the creditor has sent out a writtendemand f or payment to the consumer?

A. I have no knowledge of whether thecreditor sent out a demand for payment or not.

Q. Do you know wh ether the creditor has aposting at his place of em ployment abo ut bounced

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0 . BRANDON September 5 ,2003

Page 3C

checks?A. Oh, the creditors have a posting at the

point of sale usually. I know, for instance, Toy sR Us has a sign stating that returned checks aresubject to a fee.

Q. Have you personally seen such a sign?

A. Yes.Q. And how about Wilson Leather, Wilson

Suede and Leather?A. I can't say that I've seen one for Wilson

Suede and Leather, but I have seen one for Toys RUs. I happened to have checked it, and I know thepolicy of the compa ny.

Q. And how about Marshalls, do they have asign?

A. I've neve r looked in Marshalls, so Idon't know.

Q. The third paragraph of your letter asksthat the remission be m ade either to you or theclient. Do you have som e arrangement with theclients whereby JBC will get credit if the paymentis made directly to them?

A. I assum e, yes, but I've never gone intothat. Tha t would be -- somebody else would handlethat. Tha t would be bookkeeping of some sort.

Page 3 1Q. In the third paragraph also it says

contact Lori Brown. Who's Lori Brown?A. There is no Lori Brown, per se. It's

somebody who uses the name Lori Brown.Q. Who's that?A. I don't know.Q. Are your collectors grouped so that

somebody who asks for Lori Brown goes to a certaingroup of collectors?

A. I don't know.Q. Normally, if someone wanted to dispute

the debt they would write back to you; isn't thatcorrect?

A. If it's an attorney, it comes to me. Ifit's not an attorney, if it's somebody who wan tsto dispute the debt it would -- I'm not sure how

the process works.Q. You don't remem ber yourself getting any

dispute letters individually from a consumer?A. Very rarely.Q. Would the mail room or whoever op ens the

mail intercept the dispute letter before you sawit?

A. If it's a deb tor who's disputing orrequesting verification, it usually doesn't com e

Page 32

to me. It comes to somebody else. And I'mnotsure who it is. I only receive the letter whereit's on an attorney's letterhead.

(Plaintiffs Exhibit C entered foridentification: A on e-page sample letter.)

Q. If you'll turn to Plaintiffs Ex hibit C.

Again, that has your facimile signature on thatletter?

A. Yes.Q. And this was given to me as a sample or

the second letter that's sent anyway. Do yourecognize that?

A. Yes.Q. There is a portion a t the bottom that

says detach lower portion. And over in the rightthere is a long string of numbers and letters.

A. I don't know what that means.Q. NSDJBCAO 1002CT, would that indicate this

is a letter drafted for Connecticut?A. I don't know what those letters or

numbe rs mean, but I recognize CT as C onnecticut.Q. The middle paragraph again refers to

Connecticut General Statute section 52565A. Andit again refers to the statutory penalties to bedeterm ined by the court. Does that indicate the

Page 33

letter was drafted for Co nnecticut?A. Yes.Q. And what is the basis for your advising

the debtor that he or she may be subject tostatutory penalties?

A. The terms of the statute.Q. And w hat do the terms of the stature

provide with regard to statutory penalties?A. Offhand I don't know the Connecticut

General Statute section.Q. You're not admitted as an attorney in

Connecticut?A. I am not.

(Plain tiffs Exhibit D entered foridentification: A three-page defendant's responseto first set of interrogatories; Plain tiffs

Exhibit E entered for identification: A three-pagefact sheet.)Q. Turning to Pla intiffs Exhibit D, and I'm

going to ask you to look at D and E togetherbecause they both relate to the Marshalls'account.

A. Yes.Q. According to Exhibit D, there were I

believe seven checks issued to Marshalls in

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September 5,2003. BRANDON

I Page 34

1 January of 1996; is that correct?A. Yes.Q. And I won't ask you to add them up. 1'11

represent they am ount to two thou sand on e hundredand ninety-five dollars and fifty-four cents.

A. Face amount?

Q. Right. What figure would be appropriateto send in a letter to M iss Goins that you w oulddemand in your letter when you're collecting sevenchecks totalling two thousand one hu ndredninety-five dollars?

A. Which letter?Q. Any letter.A. The first letter, face amount plus twenty

dollar check fee.Q. For each check?A. Yes.Q. Is there som e difference in the second

letter as to the amoun t that would be deman ded?A. I don't know what the deman d amount wouldbe in the second letter.

Q. Would it change?A. I don't know.Q. Is there a basis for increasing the

demand in the second letter?

Page 35

A. I would have to see the statute.Q. Who inserts the amou nt demanded in the

letters?

A. I assume it's compu ted by Jack Boyajian.Q. Would you assume that the com putercalculates the am ount, or are you assuming thatsomeon e is physically putting in an am ount?

A. I assume it's programm ed in.Q. Let's take a look at Plain tiffs Exh ibit

E, which is the fact sheet that goes with th eMarshalls' checks. And I only reproduced the factsheet for the first check becau se they're allpretty much alike.

Do you see an entry by you anyw here inthose three pages?

A. No.

Q. If you look at the top o f the secondpage, down about six lines, there is an M B?

A. Oh, wait a minute. Let me see. Whereare we, second page?

Q. Yes.A. Where do you see an MB?Q. 62402 at 1 102 about five or six lines

down from the top on the right-hand side on pagetwo.

IrN K &* ' W A s i ,S*A ' S "I*xYI*xYiYY


Page 3(

1 A. 62402?2 Q. Way at the top.3 A. I see 1102 CS31.4 Q. Right. And is that M B on the r ight-hand5 side? Is that you?6 A. It's m y initial.

7 Q. So evident ly you made some entry from8 your compu ter?9 A. CS 3 ? I t 's my ini tial. I don't know why

10 that appeared there. I can't tell you. The re is11 no information as to why it 's there.1 2 Q. D o you know w ha t C S3 1 means?13 A. N o.14 Q. Is there any indication of M s. Goins'15 driver 's l icense on this fact sheet?16 A. No. I don't see any driver 's l icense on17 this fact sheet.18 Q. Is there any indication on this fact

19 sheet of the check num ber?20 A. No .2 1 Q. Is there any indication on the fact sheet22 of the check's date?23 A. There is no appearance of the date of the24 check on the fact sheet.25 Q. And h ow about the AB A number, which I

Page 35

guess is the American Ban king number of the check?A. I don't know. No, it doesn't appear on

the fact sheet.Q.

Where would you get that information?A. The information appears on a com puterscreen. It appears that all the inform ation onthe computer screen does not appear on the factshee t. Th is may be because of the way the factsheet was programm ed.

Q. What other information appears on thecomputer?

A. That doesn't appear on a fact sheet?Q. Right.A. I don't know . I've never given it any

thought because I don't work with the fact sheet.I work with the com puter. It's very rare I see a

fact sheet.Q. You were very particular about the check

numbers, the dates, the ABA num ber and so forth?A. That was probably taken -- I can't take

the information off. That was taken off bysomebody else in the organization. I assume itwas taken off the computer screen. Nobody checkedthe fact sheet.

Q. Who took this information off!

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A. I assume it would be Karen Hopkins or

2 Daw n Pollard.Q. If there is information on a co mpu ter

screen, can't you just hit a button an d print itout?

A. That's what I thought.

Q. Well, we are missing then evidently someof the parts of the com puter screen, and we wouldlike to have those.

A. This may be just the way the fact sheetis, the comp uter softwa re, the way it's made up.

Q. Right. You may have printed out just thefact sheet and not the wh ole record?

A. I don't know if we have the ability toprint out the whole screen. As far as I know theonly thing we can print out is the fact sheet.

Q. Usually you can do a screen dump. So Iwould ask you to go to your IT person and see if

your IT person can d o a screen dum p so we can seeall this information for ourselves.(Discussion off the record.)

Q. At the top o f the first page of the factsheet on the left there is a Status 42, whichlooks like it says closed per JB C?

A. Yes.

Page 39

Q. Who's JBC?A. A law firm of, I assume it's JBC, P.C.,

or if this is short for JBC, P.C.

Q. The fourth line says activity code NU,not used; what do es that m ean?A. No idea.Q. How about below that previous GWAID?A. GW A was a comp uter software that we used

prior to the present software, CRS. When I cameinto the firm , within the first six months therewas a switch over to the new C RS system software.GW A is a reference to the old system.

Q. Does that indicate that you might be ableto pull something out of the old system?

A. I don't know. I don't know what thestatus of that system is. I just recognize the

initials GWA.Q. Your sample form letter to Connecticut,

which is Exhibit B, refers to a service charge oftwenty do llars; whereas this fact sheet refers toa fee of twenty-five dollars. Can you tell mewhat the difference is?

A. I don't know wh y there is a discrepancy.It may have been -- I really can't say. I have noknowledge o f why there is that discrepancy.

Page 4C

Q. When was this fact sheet printed? Iguess I could answer that myself, March 6 ,20 03 itsays on the third page?

A. Yes. The date it was printed was March

6th.Q. So the fact sheet is current as of M arch

6, 2003; is that correct?A. That was when it was printed off on that

date.Q. The dates of the checks are all in 1996.

And this first sheet begins 5/17/99. Is that whenyou transferred from the old software to the newsoftware?

A. We transferred from the old to the newwithin the first six months of 1999. I don't knowwhen it was entered into GWA , the old system. ButI probably wasn't there. Mr. Cilingaryan wasthere.

Q. In your response to interrogatories yousaid you transmitted letter number 114 on 6/2/99.Is that referenced in this fact sheet somewhe re?

A. We're correcting that. I don't know what114 means. I went back and checked to see when wehad sent out letters. SN signifies a letter wassent.

Page 41Q. So on the first page of Exhibit E, th e

fact sheet, you can see the third line down itsays SN/3?

A. That's whena

letter wa s sent.Q . Do es that mean the third letter in theseries; is that what SN/3 means?

A. I don't know which letter was sent.Q. If you look at the last page you'll see

SN/2?A. Yes. That would be -- I can't tell which

letter wa s sent.Q. But SNl2 was sent on January 3 0,2 00 3; is

that correct?A. SN/3?Q. SN/2?A. What page?

Q. Th e third page. This is the last page.A. On the third page?Q. Right.A. SN/2 was sent on 1/29/03.Q. Can you just start on the first page on

the right-hand column a nd interpret for me wh at itsays below transactions.

A. Oh, I don't know wha t those symbols are.I mean, the only sym bol I 'm familiar with is SNI

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v. BRANDON September5, 2003

Page 42

1 and the number, one, two or three.r-Q. Who would know what the symbols mean?

3 A. That would be Dawn Pollard.4 Q. Does she have a reference manual of som e5 sort that I could have that would enable me to6 read these for myse lf!

7 A. I don't know.8 Q. Would you ask her?9 A. Yes.

10 Q. So on the extreme right-hand column that11 says ID?12 A. That's the initials of the person who13 entered the numbers and letters. DMP stands for14 Dawn Pollard.15 Q. Do you have any idea what Dawn Pollard16 did on January 16,2002?17 A. No.18 Q. It looks like the time is 2241, which19 would be pretty late at night. Does she work that20 late?21 A. What page are you on? I'm sorry.22 Q. I'm still on page one.23 A. Where is the entry?24 Q. January 16,20 02.25 A. Oh, I see you. No, I don't know what--

Page 43

that stands for.Q. Below that there is an ROO; do you kn ow

what those are?A. Yes. That whole line I believe is

initials.Q. So the second page where there is a whole

bunch of DM P's, that's all something Dawn d id?

A. As fa ra s1 know,yes .Q. It looks like a whole bunch of credito rs

here, Bob's, CVS Stores. Why is this accountwhich was a Marshalls' account marked UNRTRN fo r

all these different creditors?

A. I don't know.

Q. Is there any indication on this acco untof when it reached a closed status?

A. Let me see, there is no indication on

here that I can see.Q. Is there an y indication on this fact

sheet of attorney representation?

A. No. I don't see any.

Q. On the last page there is several

references to the number 235; do you recognize

that?

A. I'm sorry?Q. On the last page there is a bunch of

Page 44

references to 235; do you know what those are?A. I can't see where you're referring.Q. On the right-hand side under ID?A. On page three?Q. Yes.A. I don't see them.

Q. Way over o n the right-hand side by themargin under ID.

A. Oh, I'm sorry. I don't know what theystand for.

Q. So if you brought this account up on yourcomputer screen what would you know about it?

A. You mean according to the fact sheet orthe com puter scree n itself?

Q. Well, I'm assuming you're seeing morethan this fact sheet?

A. That's correct.Q. Is there any thing you can tell from

looking at those three pages about the account?A. On 11/26/01 the debtor refused to pay.Q. Does that indicate a telephon e call or a

dispute letter?A. I believe tha t's a telephone c all.Q. Were you looking at the other exhibit?A. I was looking at the other fact sheet.

Page 45

Q. We'll get to that. Is there any way inyour system that an account is reopened after itis closed?

A. I don't have any knowledge of how that

would be done.Q. Do you know whether it can be done?A. I don't know.Q. Is there som eone assigned to going

through closed files and opening them to see ifthey can find the debtor or anything like that?

A. I have no knowledge o f that.(Plaintiffs Exhibit F entered for

identification: A one-page document; PlaintiffsExhibit G entered for identification: A three-pagefact sheet.)

Q. If you look at Exhibit F and G together,

and those two exhibits are regarding the WilsonSuede and Leather Com pany?A. Yes.Q. Once again there is nothing on those

sheets that show the check number or the date ofthe check or the driver's license num ber; is thatcorrect?

A. That's correct.Q. There is a social security number on


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1 Exhibit E and on Exhibit G. And they appear to be2 different. Can you explain why that might be?3 A. I don't know if that's the social

security number of the debtor. It may be a fieldthat's used for some thing else. I can't commenton that. I don't know.

Q. But there are two different figures ineach of those accounts; they're not the sam enumbers?

A. To my knowledge I don't believe these aresocial security numbers. I think they're justusing the field for something, but I don't knowwhat. I can't comme nt on that.

Q. All right. Plaintiffs Exhibit G saysStatus 49, closed per attorney. What does thatmean to you?

A. Somebody closed it. It may have beenme. And the status is 49.

Q. What's the difference between Status 49on G and Status 42 on E?A. Status 42 is closed by JBC, and Status 49

is closed per attorney. Status 49 may have beenthat I closed it.

Q. Your initials are again on the top of thesecond page at the very right-hand side under the

Page 47

same date as in Exhibit E.A. 6/24/02?Q. Right.

A. That would be me closing the file. Itcould be me closing the file. I'm not sure why.Q. Okay. And Exhibit G shows collection

unit 345 Lori Brown. What does that mean?A. Where is this?Q. Right on the front under status, top

left.A. Oh, I'm not sure why that collection unit

345 Lori Brown appears.Q. Is it JBC's normal practice to assess a

twenty-five dollar bounced check fee in statesother than Connecticut?

A. The normal practice is to assess the fee

according to the statute of the state. Moststates have a bounced c heck fee am ount, a specificstatutory amo unt. Some states do not.

Q. So is the twenty-five dollars somethingthat's put in that area up on the upper rightcheck charge fee just automa tic?

A. That's usually the statutory amountthat's permitted to by statute. It may vary fromtwenty to thirty-five dollars.

I "" X " ? r n W WW 4 ' '

SANDERS, GALE&

RUSSELL

Page 48

Q. And that's not the case in Connecticut?A. I don't know without reading the statute.Q. Well, your letter says it's twenty

dollars?A. The n it's twenty dollars.Q. Has your --A. -- By the way, New York is twenty dollars

by statute.Q. Ne w York is?A. Yes.Q. Have your letters, I'm going back to your

sample letters, Exhibit B and C, have your lettersever referred to criminal consequences of abounced check?

A. W hich letter are you --Q. -- I'm looking at Exhibits B and C, w hich

do not refer to criminal consequences.A. Do we ever refer?

Q. In the past, before these letters wereadopted, have your letters ever referred tocriminal consequences?

A. To my knowledge, no. Letters should notrefer to criminal consequences.

Q. Why is that?A. It may be a violation of the FDC PA.

Page 49

Q. Look at Pla intiffs Exhibit C, the secondsentenc e says our clients may now assume youdelivered the ch ecks with intent to defraud and

may proceed with allowable remedies. What is thebasis for the client assuming that the chec ks weredelivered with intent to defraud?

A. Would you repeat the question, please.(Question read back.)

A. The debtor has not responded to thesecond, the first letter. And the client mayassum e that there was an intent to defraud theclient and may proceed with civil remedies.

Q. That's what it says, but why may theclient proceed w ith civil remedies?

A. Beca use the debtor has not responded tothe request for payment.

Q. Is that all?A. That's all.Q. Do you find that most checks are written

with intent to defraud?A. It says the client may now assume.Q. The question was: Is it your experience

that m ost check s are written with intent todefraud?

A. My expe rience has been that the majority

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of people w rite c hecks without sufficient funds intheir accounts, and that they knew it.

Q. So that's the premise o f the letters thatgo out from JB C, that all these checks wereknowingly written when there w ere insufficientfunds?

A. There may be a reason for theinsufficient funds, check has not cleared or theparty has paid the debtor prior. Mo st people whoare honest about it will say something about it.

Q. Will say something about what?A. Will respond to the letter. My

experience has been the majority of people whohave a legitimate reason for the check bouncingwill respond when they receive the letter sayingthat there is a bounced check.

Q. And wh at percentage o f people out of thewhole percentage o f letters that go out respond to

the letters saying I have an excuse?A. The majority of people that have anexcuse will respond.

Q. That isn't the question.A. Yes.Q. The question is: What percentage o f

people respond at all in the whole universe of the

Page 5 1

letters you sen t ou t? Is it five percent, tenpercent?

A. I have no idea. I'm not privy to thatinformation. In my end of the business thatdoesn't come up.

Q. So that's just your opinion rather thanyour experience?

A. My opinion based on experience.Q. Now , you are not licensed as a consum er

collection agency in Conn ecticut; is that correct?A. That's correct.Q. And JBC is not licensed as a consumer

collection agency in Con necticut; is that correc t?A. That's correct.Q. Mr. Boyajian is not licensed, either; is

that correct?

A. That's correct.Q. And have you had correspondence with the

Connecticut Banking Department about gettinglicensed?

A. Yes. We made a filing. And Mr. Boyajianis handling it. And they returned the filing forsome additional information. And that informationis being provided to them.

Q. Mean while, are you still collecting in

Page 5

Connecticut?A. To my knowledge, no.Q. What precautions were taken to avoid

collecting in Connecticut?A. I don't know . You would have to ask the

person in charge of that.

MS. FAUL KNE R: I did ask for allthe correspondence w ith the Co nnecticut BankingDepartmen t in discovery, and I didn't getanything.

M R. FIAN O: Yes. I believe at thetime Mr. Brando n didn't have anything in hispossession. But I'll get you generally what JBChas to the extent that there is any.

(Plaintiffs Exhibit H entered foridentification: A one-page assignment;Plain tiffs E xhibit I entered for identification:A twelve-page con sent decree; Plaintiff s Exhibit

J entered for identification: A one-page fax toElaine Szym anski from M arv Brandon.)Q. Mr. Brandon , I'm ask ing you to look at

Plaintiffs J. Do you recognize that?A. Yes. It's my signatu re.Q. And w hat is that documen t?A. It's a fax to Elaine Szymanski,

Page 5:

Connecticut Department of Banking.Q. What did you tell the Departmen t of

Banking abou t collection in Conn ecticut?

A. That we discontinued comm unication withConnecticut residents.Q. Did you personally k now that for a fact?A. I must have been informed of that fact by

somebo dy. I did not personally know that.Q. At the top of the letter there is a

reference to Roa H utton; what is that?A. That's a firm that shares som e space with

JBC and A ssociates, P.C.Q. Is that also on the sixth floor at 2

Broad Street?A. Yes.Q. And w hat type of firm is that?

A. It's a real estate firm .Q. Do yo u have any interest in that?A. Me?Q. Yes.A. No.Q. Do you work for that firm at all?A. No.Q. Do any em ployees of JBC work for that

firm?


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A. The only employee who would work for thatfirm hat I know of is Jack Boyajian, but I'm notsure what the relationsh ip is. And any thing I sayabout it would be speculation.

Q. Is there a reason that the Roa Hutton faxwas used instead of the JBC fax for that

particular piece of pap er?A. Yes. Their office is next to mine, and I

probably just w alked in and used their fax becausethe other fax was tied up. That's the onlyreason. I use that frequently. It's right nextdoor.

Q. With regard to M s.0,o you have theoriginal checks?

A. I requested the original checks from theclients. Were you provided with checks?

Q. No.THE WITNESS: Do you have any

checks?Q. Excuse me. You're not suppos ed to talk

to Mr. Fiano.A. I requested the checks from the clients.

They were unable to provide checks. As far as I

know there may have been two or three checks thatthey did provide, copies of them. If we had them

from?A. I think we asked Melville for copies of

the checks, which is Marshalls and CVS if mymem ory serves me right.

Q. When did y ou ask for the checks?A. I asked for the checks I think as soon as

suit was, your first suit was commenced.Q. Do you have a copy of the letter?A. I think I did it by phone or fax, but

I'll look in the file and see.Q. Would that be o n part of the computer

record that's not bee n provided to m e so far?A. No. If it was entered, if I entered it

into the compute r it would have showed up o n thefact sheet.

Q. If you would look at Exhibit H, C V Sassignment?

A. Yes.Q. Do you recognize that document?A. Yes.Q. And what is that?A. It's an assignment o f CVS' claims to JBC

and A ssociates, Inc.Q. Is that your signature on the bottom

left-hand side?

Page 55

in the file, we would be glad to provide them toyou. The majority of the checks are unavailable.They were destroyed, lost, or we could not getthem from the clients.

Q. Could you bring a civil proceedingagainst Ms. w i t h o u t he checks?

A. We would rely on the books and records ofthe company of the clients.

Q. What books and records?A. The factual material.Q. What factual material?A. Com puter, fact sheet.Q. You would bring this fact sheet into

court that doesn't have the dates of the checks orthe numbers of the checks; is that what you'resaying?

A. I don't know if the court would acceptit, but we would have the information. We wouldprovide all the information that we would have.The client may have a way o f printing it out,their books and records.

Q. And w ho is the client in this case?A. It would be Wilson Suede and/or

Marshalls.!5 Q. Which client did you ask fo r the checks

I_ i , Y V I " "" " we -3 ' ' A LI-\

- -Page 57

A. Yes.Q. And is that M r. Boyajian's on the bottom

right-hand side?A. Yes.Q. This seem s to be dated October of 1998,

which is before you started at JBC according toyour recollection; is that correct?

A. That's correct. I stated earlier.Q. Did you have some relationship with JBC

before you were hired?A. No.Q. Ho w do you account for the fact that the

letter is dated earlier?A. I can't account for it. It may have been

back dated for som e reason or maybe an error inthe year.

Q. Well, there is some kind o f faint faxmarks up on the top. And they all agree it's1998 . It appears to be; is that correct?

A. Yes. It appears that was faxed to JBC onOctober of 1998.

Q. Do you recall somebody asking you towitness this after the fact?

A. No. I don't recall when this was done.Q. Do you make collection guarantees to your


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clients?A. Me personally?Q. No, JBC?A. I have no knowledge of the relationship

between CV S and JBC, what terms they have forcollections.

Q. That wasn't limited to CVS or M elville.I'm talking about a ny client?

A. No. I have no relationship with clientsconcerning agreem ents for checks.

Q. Have you ever individual visited JBC'sweb site?

A. No.Q. Who's in charge of the web site?A. Who's in charge of the web site?Q. Right.A. I've never been there. I've never

entered it. I don't know who 's in charge of it.

Q. What kind of software do you use at JBC ?A. What kind of software do I use?Q. JBC. What does JBC use?A. You mean for collection?Q. Yes. Is there a name for it?A. CR S. That's all I know.Q. Do you know what company is the vendor?

Page 59

1 A. No.2 Q. Do you recognize the name Ka ren Nations3 (phonetically)?

4 A. I recognize her as an attorney. I've had5 no relationship with her.6 Q. Is she in-house counsel for JBC?7 A. She may be associated with JBC as a,8 what's the term, not an asso ciate, of-counsel9 relationship.

10 Q. And how about Elton Watkins11 (phonetically)?12 A. Of counsel.13 Q. Ho w long has Elton W atkins been of14 counsel?15 A. I don't know .16 Q. Does your facimile signature still appear

17 on the form letters JBC sends out?18 A. No.19 Q. When did that stop?20 A. As of January 1,200 3.2 1 Q. Why did that stop?22 A. I was going to leave the firm, retire.23 But I was asked to stay on. But my name was

1-24 removed from the letters.:5 Q. So at that point anybody who got the

Page 6(

letters would not know you were at JBC ?A. No. The letterhead that we use now shows

me as an attorney in New Jersey. The letterheadon the left-hand side appears the name of JackBoyajian, my nam e, and what state we're admittedto and the names of the of counsel.

Q. If you look at the fact shee ts, is thereany indication on there that you ever got M s.Goins' credit report?

A. No. I've never seen her credit report.Q. Did JBC get her credit report?A. To my knowledge, no.Q. What would be the occasion for getting

her credit report?A. I don't know.Q. Would you do that before you decide

whether to sue, for instance?A. Her credit report may have been obtained

pursuant to suit if the information that we neededto sue was on her credit report. I don't know theparameters for pulling a credit report.

Q. Do you know what the statute oflimitations is for dishonored che cks inConnecticut?

A. Offhand, no.

Page 6 1

Q. Do you know what the statute oflimitations is in New Jersey?

A. For dishonored check s?Q.

Right.A. It could be six years.Q. Are you familiar with the M arshalls'

stores?A . As clothing stores, yes.Q. I was going to ask you what they w ere.A. Clothing stores.Q. Okay. How about Wilson Leather?A. They sell leather goods , like jackets,

wallets, anything made of leather.Q. So both of those --A . -- Wilson's is usually in malls. And

Marshalls is usually free-standing stores or part

of strip malls.Q. You gave me only two sam ple letters. Are

those the only letters that are used inConnecticut as far as you know?

A. As far as I know, yes.Q. Are those similar to those that are used

in other states?A. To the best of my knowledge. There are

similarities.

SANDERS, GALE&

RUSSELL

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1 Q. Are there just two types of form letters2 that you send?3 A. To the best of my knowledge, yes.4 Q. Do you hav e any idea what the standing of5 JBC is in the collection field? Is it the6 largest, the smallest? What's the type of'7 standing that JBC has?8 A. JBC and Associates, P.C.?9 Q. Right.10 A. It's just a guess, but I would say it's11 on the small side. Small, small side.12 Q. Does JBC have competitors in the bounced13 check collection?14 A. There are other firms that do it. I15 don't know their names.16 Q. Is JBC one of the m ore prominent ones as17 far as you know?18 A. No.19

Q. Does JBC keep statistics on its success20 rate or recovery rate?21 A. Not to my knowledge.22 Q. Do you see any reports that are23 circulated around JBC as far as recovery rates or?24 A. No. I've never seen reports concerning25 recovery rates.

Page 63

Q. How about evaluations of employees, haveyou seen those?

A. No. I've never seen an evalua tion of anemployee.

Q. Are you fam iliar with the Check Rec overyProgram?

A. No.Q. Are you familiar with the ph rase

computer-aided auto strategies?A. No.Q. Are there any states other than

Connecticut that JBC does not collect in?A. Does not collect in?Q. Right.A. Not to my knowledge, no.Q. So JBC collects in all fifty states other

than Connecticut at this point?A. I believe that's correct, yes.Q. Does JBC report to credit bureaus?A. To my knowledge, no.Q. Does JBC have a trademarked check

recovery program?A. A trademarked check recovery program?Q. Yes.A. Not to my knowledge.

Page 64

Q. Who would handle its trademark business?A. The only person who I know would know

would be Jack Boyajian.(Plaintiffs Exhibit K entered for

identification: A one-page document entitled,"Strategies.")

Q. I'm showing you w hat's been marked asPla intiffs K. And it purports to be the web siteof JBC and Associates. Would you agree thatthat's what it appears to be?

A. Yes.Q. It has a picture of several people

sitting around the table; d o you recognize any o fthose people?

A. The picture is not clear, and I don'trecognize anyone sitting around that table.

MS. FAULKNER: Do you have amagnifying glass?

MR. FIANO:I

don't think so.(Discussion off the record.)A. I don't recognize any of those people.Q. No Dawn in there or Karen or Jack?A. No.Q. Or Steve?A. No. This picture may have been taken in

Page 65

the Iselin office.Q. In the older office you mean?A. Yes. Of course I don't recognize the

table.Q. Don't eve n recognize the office; is that

what you're saying?A. Right.Q. JBC is collecting in Massachusetts as far

as you know?A. As far as I know, yes.Q. Is JBC licensed in M assachusetts?A. I don't know if we're licensed in

Massachusetts. I don't know if we have to belicensed in M assachusetts as a law firm.

Q. Who would kno w that?A. The only person at the firm that I could

think of who would k now that would be JackBoyajian.

Q. I don't think I have any furtherquestion s, but if you just let me look over mystuff for a fe w minutes.

MR . FIANO: No problem.(Discussion off th e record.)

Q. In one of the discovery requests that yougave me, an d I did not bring it, I'm sorry, there


17 (Pages 62 to 6 5)

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0 .BRANDON September 5, 20 03

Page 66

is a response to a collection m anual that tellscollectors how to deal with various objections ofconsumers and so forth. Did you have a hand indrafting that?

A. No.Q. Do you know who did?

A. No.Q. Who is the FDC compliance officer at JBC?A. FDCPA compliance officer?Q. Yes.A . I don't know if there is a specific

compliance officer.Q. Where would a collector go to ask a

question about compliance with the FDCP A?A. He would g o to his supervisor or the

manager o f the floor. Steve I think his name is,Steve Bellow (phonetically).

Q. Is there anybody who's full-time job is

making sure that JBC c om plies with state licensinglaws?A. There is no specific person. It could be

Jack Boyajian. It could be myself.Q. Is there any specific person w hose

primary job duty is to make sure JBC complies withthe Fair Debt Collections Act?

Page 67

A. Any specific person?

Q. Right.

A. No.

Q. Okay. I have no further questions.

MR. FIANO: I have no questions.

(Deposition conclud ed at 3: 10 p.m.)

MARVIN BRANDON

SUBSCRIBED AND SWORN TO BEFORE ME,

the undersigned authority, on this

the day of ,20 03 .

NOTARY PUBLIC

My Commission expires:

Page 68

1 EXHIBIT INDEX2 PLAINTIFF'S EXHIBITS

FO R IDENTIFICATION: DESCRIPTION PAGE

A 1 9ne-page waiver of serviceof summonsA one-page sample letter 26A one-page sample letter 32

A three-page defendant's 33response to first set ofinterrogatoriesA three-page fact sheet 33A one-page document 45A three-page fact sheet 45A one-page assignment 52

A twelve-page consent decree 52A one-page fax to Elaine 52Szymanski from Marv BrandonA one-page document entitled, 64

"Strategies"

..16

NOT E: Exhibits retained by counsel.

17

SANDERS, GALE&

RUSSELL

18 (Pages 66 to 68)

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3.2 Deposition of Collection Lawyer/Owner (PDF format)

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1

1 IN THE UNITED STATES DISTRICT COURT

2 FOR THE DISTRICT OF CONNECTICUT

3 --------------------------------x

4 [Consumer],

5 Plaintiff,

6 -versus- : Case No. 3:02CV 1069

(MRK)

7

JBC & ASSOCIATES, ET AL,

8

Defendants.

9--------------------------------x

10

11

12

13 Deposition of JACK H. BOYAJIAN, taken

14 pursuant to The Federal Rules of Civil Procedure, at the

15 offices of Sanders, Gale & Russell, [Address],

16 New Haven, Connecticut, before Patricia Saya, LSR No.

17 37, a Registered Professional Reporter and Notary Public

18 in and for the State of Connecticut, on January 27,

19 2004, at 10:35 a.m.

20

21

22

23

24

25


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1 A P P E A R A N C E S:

2 For the Plaintiff:

3 JOANNE S. FAULKNER, ESQ.

[Address]

4 New Haven, Connecticut 06511-2422

5 For the Defendants:

6 KLEBAN & SAMOR, P.C.

[Address]

7 Southport, Connecticut 06890

By: SABATO P. FIANO, ESQ.

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


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1 (Plaintiff's Exhibit L: Marked for

2 Identification - described in Index.)

3 MR. FIANO: He will read and sign.

4 J A C K H . B O Y A J I A N ,

5 of [Address], Bloomfield, New Jersey 07003,

6 called as a witness, having been first duly sworn by

7 Patricia Saya, a Notary Public in and for the State of

8 Connecticut, was examined and testified as follows:

9 DIRECT EXAMINATION

10 BY MS. FAULKNER:

11 Q. Mr. Boyajian, you are here on a deposition in

12 a case brought by [Consumer] against JBC &

13 Associates. What is your position at JBC & Associates?

14 A. JBC & Associates, PC, I am the president of

15 that entity.

16 Q. Do you have any other positions there,

17 director, officer, shareholder?

18 A. I am an owner.

19 Q. Do you have co-owners?

20 A. No.

21 Q. Was your father ever associated with JBC?

22 A. Is that the end of your question?

23 Q. Yes.

24 A. No. You need to clarify "JBC."

25 Q. All right. What is my confusion?


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1 A. Well, is it JBC & Associates, PC that you are

2 referring to?

3 Q. Not necessarily, any JBC entity. I know you

4 were an Inc. before.

5 A. The answer is no in either case.

6 Q. Is your father's name also Jack?

7 A. No, it is not.

8 Q. Is your father's name John?

9 A. My father is deceased. My father's name was

10 not Jack or John.

11 Q. Was he ever associated with JBC or Goldman?

12 A. Okay. Now you are asking me two different

13 questions. Can you please rephrase the question?

14 Q. There was a Goldman & Levine, there was a

15 Goldman & Company, and there was a G&L Financial. Was

16 your father associated with any of those?

17 A. I don't understand what relevance that has to

18 this case. What is the nature of your question and why

19 do you ask it?

20 Q. Answer the question, please.

21 A. I won't answer that question. There is no

22 relevance. Unless there is a reason to link the two

23 entities together, then there is no answer that I need

24 to give you.

25 Q. There was a Jack Boyajian -- excuse me for


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1 mispronouncing your name -- associated with all those

2 entities. I am trying to find out whether it was you.

3 A. Well, I don't know which of those entities you

4 are speaking of, because it is a compound question that

5 you asked me. So I cannot answer that question. Even

6 if I wanted to, I could not answer that question.

7 Q. You were an officer of G&L Financial; is that

8 correct?

9 MR. FIANO: I am going to object to the

10 form of that question. I think his point is well taken.

11 I am not sure -- to be honest, I have never heard of J&L

12 Financial, so I am not sure what J&L Financial has to do

13 with the case.

14 MS. FAULKNER: It is G&L.

15 MR. FIANO: Which I guess shows my point.

16 I am not sure what G&L Financial has to do with this

17 case. I know there is a claim against JBC & Associates

18 and other defendants. I am not sure what the relevance

19 of that is.

20 MS. FAULKNER: Relevance is not a basis

21 for objecting to discovery.

22 A. I will not answer that question.

23 Q. So you were associated with Goldman & Levine?

24 A. I don't know what you mean by "associated,"

25 and I don't know what that has to do with this case.


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1 Q. You were associated with G&L Financial?

2 A. I don't know what you are referring to. Can

3 you explain exactly what you mean by "associated"?

4 Q. When did you graduate from Rutgers?

5 A. Rutgers what, ma'am?

6 Q. Law School?

7 A. 1996.

8 Q. And did you take the New Jersey Bar?

9 A. Yes, I did.

10 Q. And did you pass it?

11 A. Yes, I did.

12 Q. And did you get admitted to New Jersey?

13 A. No, I did not. I did not apply for

14 New Jersey -- I did apply, but I withdraw my application

15 for admission to the bar.

16 Q. Why was that?

17 A. I chose not to be admitted in New Jersey.

18 Q. Are you admitted anyplace else?

19 A. Yes.

20 Q. Where is that?

21 A. California.

22 Q. That was what year?

23 A. 1999.

24 Q. Do you practice law in California?

25 A. Yes, I do.


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1 Q. What type of law do you practice in

2 California?

3 A. General law, I practice corporate law, and

4 plaintiff -- plaintiff matters relating to asset

5 recovery, as well as entertainment law.

6 Q. Do you do any work in California for J&B

7 Associates?

8 A. J&B?

9 Q. Right.

10 A. Do you mean JBC?

11 Q. Sorry. I am looking at the ampersand. JBC,

12 thank you.

13 A. Yes. That is a California corporation, law

14 firm, doing business in California. And yes, I do work

15 in that firm.

16 Q. Do you bring collection lawsuits in California

17 on behalf of clients of JBC?

18 A. Again, I am wondering what the relevance of

19 that is in a Connecticut matter. But the answer is yes.

20 Q. What employment have you had since law school?

21 A. I have been employed by JBC & Associates,

22 Inc., and JBC & Associates, PC.

23 Q. Have you had any other employment since law

24 school?

25 A. I have a non-paying position in other


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1 unrelated entities.

2 Q. What are those entities?


4 materialness of the question. I am honestly not sure

5 why we are going through all the entities that he is

6 affiliated with. I am just not sure how that ties into

7 the claims.

8 I understand I can't make an objection as to

9 relevance, but I can certainly make an objection if it

10 appears immaterial and not intended to lead to any

11 admissible evidence. And I am truly confused in terms

12 of how other entities that aren't defendants to the

13 lawsuit -- there is no allegations as to any conduct as

14 to these entities -- tie into the lawsuit at all.

15 MS. FAULKNER: Would you restrict your

16 objections to one or two words, please?

17 MR. FIANO: Okay. I am going to object

18 to the form.

19 Q. What other entities have you been employed by

20 since graduating from law school?

21 A. I hold a position as president of ROA Hutton,

22 LLC, and that is it.

23 Q. Since you graduated from law school, would you

24 name all the entities with which you have been

25 associated?


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1 A. In what capacity?

2 Q. Any capacity; employed, officer, owner?

3 A. Asked and answered.

4 Q. When did you graduate -- you implied -- excuse

5 me.

6 You graduated from Rutgers undergraduate, did

7 you?

8 A. No, I did not.

9 Q. Where was your undergraduate school?

10 A. The Wharton School of Finance, University of

11 Pennsylvania, 1982.

12 Q. What employment have you had since 1982?

13 A. I have been a vice president of C&R Realty &

14 Management Company, president of Far Hills Community

15 Management, Inc., President of the Hutton Group, Inc.,

16 president of Quemont Developers, Inc.

17 Q. Did you have any association with Goldman &

18 Levine?

19 A. Goldman & Levine was a trade name for G&L

20 Financial Services that I was acting president for for

21 approximately a year and a half between 1994 and 1995.

22 Q. What about Goldman & Company?

23 A. I have absolutely no association or no

24 knowledge of a company named Goldman & Company.

25 Q. Do you know of Brian Sussman?


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1 A. Brian Sussman was an individual who was

2 associated at one time with G&L Financial Services, to

3 my recollection, and shortly after my involvement, was

4 no longer involved.

5 Q. How about Barry Sussman?

6 A. What about Mr. Sussman?

7 Q. Do you know Barry Sussman?

8 A. In what capacity?

9 Q. Any capacity?

10 A. Mr. Barry Sussman was an employee of G&L

11 Financial Services during my interim stay there and went

12 on to -- to my understanding, formed an independently

13 run Goldman & Company as a distinct entity from anything

14 else, other than G&L Financial Services, Inc.

15 Q. How much time do you spend at the location of

16 JBC & Associates?

17 A. Which location, ma'am? Please be precise.

18 Q. How many employees do you have in your Boston

19 office?

20 A. Are you withdrawing the prior question?

21 Q. How many employees do you have in your Boston

22 office?

23 A. Are you asking me how many employees did JBC &

24 Associates have in Massachusetts? Because we don't have

25 a Boston office.


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1 Q. All right. Answer that question.

2 A. We have of counsel there, Mr. Elliott Watkins,

3 and I believe he has several members working with him in

4 that office. I don't know the exact count at the

5 moment.

6 Q. And do the members in the Massachusetts office

7 also work for JBC other than Mr. Watkins?

8 A. They are not -- their payroll is paid by

9 another entity. I don't know where, but we do --

10 technically, they work for JBC & Associates in the

11 matters that relate to JBC & Associates.

12 Q. Do you have an agreement with Mr. Watkins?

13 A. Again, I don't understand the relevance of

14 this question with respect to this case, and that is

15 confidential. That agreement, if there is one, is

16 confidential, and I am not in a position to discuss it.

17 Q. Why is it confidential?

18 A. Because it is man-made law that we agreed to

19 have a confidential agreement between the two entities.

20 Q. What two entities?

21 A. JBC & Associates and Mr. Watkins. I believe

22 that is your question, was it not?

23 Q. Mr. Watkins is of counsel to JBC & Associates;

24 is that correct?

25 A. Asked and answered affirmatively, yes.


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1 Q. And JBC & Associates has some kind of a

2 contract with Mr. Watkins as of counsel; is that

3 correct?

4 A. I don't know why you are laying foundation

5 down when I have already testified to what you just

6 said.

7 Q. I am trying to --

8 A. I don't know why you are wasting time. Would

9 you like the Court Reporter to reread what my testimony

10 was?

11 Q. Mr. Boyajian, you have had your deposition

12 taken many times. I think you know how to behave at a

13 deposition.

14 A. Is that a question?

15 MR. FIANO: If I could just clarify, maybe

16 reading it back would be helpful. I think he testified

17 that there is an agreement between JBC and Mr. Watkins

18 to keep their relationship, the nature of their

19 relationship, confidential, which they are free to do by

20 contract, or they are free to have an agreement to keep

21 their relationship confidential.

22 MS. FAULKNER: They are not free to keep

23 it confidential from court if it is appropriate.

24 Q. So your testimony is that the Boston office,

25 the Massachusetts office -- which I think is in Boston?


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1 Is it not in Boston?

2 A. I think the mailing address is in Boston. I

3 believe the offices are just on the outskirts of Boston.

4 Q. You have a relationship of of counsel with

5 Elliott Watkins. What does he do for JBC?

6 A. Mr. Watkins acts of counsel to matters

7 relating to JBC clients.

8 Q. Exactly what does he do for JBC clients?

9 A. If you asked me specifically questions that I

10 can respond to, I will. I don't know what you mean by

11 "what does he do." He is of counsel. He does what of

12 counsel does.

13 Q. What does he do? Does he bring lawsuits?

14 Does he communicate? Does he sell JBC & Associates?

15 What does he do? Does he act as a --

16 A. Sell JBC & Associates? What do you mean?

17 Q. Is he a sales associate for your business?

18 A. I don't think typical services of counsel

19 includes selling the services, but in that particular

20 case, no, he does not.

21 Q. Does he bring lawsuits on behalf of JBC

22 clients?

23 A. Yes, I believe he does.

24 Q. Does he get compensated for those lawsuits?

25 A. Yes, he does.


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1 Q. Is that pursuant to this agreement with JBC?

2 A. Again, the terms of the agreement are

3 confidential. I am not at liberty to discuss them

4 unless a court order is issued, and then I will have to.

5 Q. What about your Beverly Hills office? How

6 many people are employed there?

7 A. At what time period, ma'am?

8 Q. If it changed over the course of time, you may

9 tell me the changes over the course of time.

10 A. Well, can you give me a time period that you

11 are interested in?

12 Q. Since 1999.

13 A. It has ranged from two to five, with the

14 current staff count four.

15 Q. Who is Dan Wagner?

16 A. He was one of our employees. He is no longer

17 with us.

18 Q. Who was Karen Hopkins?

19 A. She is a paralegal.

20 Q. How many paralegals does JBC employ?

21 A. At the moment, four.

22 Q. Who are they?

23 A. Karen Hopkins, Anisa Singh, and the other two

24 paralegals, I don't know their exact names.

25 Q. Does JBC have a compliance officer, FDCPA


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1 compliance officer?

2 A. We have several attorneys that act in the

3 capacity of -- in your term, "compliance officer."

4 Q. Who are they?

5 A. Mark Brandon is one. Karen Nations and

6 Karen Wachs are two others, myself, Jack Boyajian.

7 Q. How long has Karen Nations been with JBC?

8 A. Over a year.

9 Q. Where is she admitted to practice?

10 A. New Jersey, New York, Kansas.

11 Q. How about Karen Wachs? How long has she been

12 with JBC?

13 A. Less than a year.

14 Q. Where is she admitted to practice?

15 A. New Jersey, Pennsylvania.

16 Q. Who is Laurie Brown?

17 A. I believe Laurie Brown was at one time an

18 employee and later was used as a pseudo name for a

19 collector.

20 Q. Is JBC on the sixth floor or the seventh floor

21 of Broad Street or both?

22 A. We have space on both levels.

23 Q. How many employees are there at the

24 Broad Street location?

25 A. At the moment, I believe there is a total,


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1 A. There was a company in New Jersey that was

2 called JBC & Associates, PC, Inc., yes.

3 Q. There was a corporation called "PC" and then a

4 separate corporation called "Inc.," was there not, JBC &

5 Associates, PC, and JBC & Associates, Inc.?

6 A. Asked and answered. Yes.

7 Q. Well, you said "PC, Inc." I am talking about

8 two different corporations.

9 A. I don't think -- if I said "PC, Inc.," I

10 misspoke. PC is one corporation. Inc. is another.

11 Q. And it changed from Inc. to PC; is that

12 correct?

13 A. When you say "it," are you speaking of an

14 entity?

15 Q. Are you?

16 A. A singular entity that changed its name from

17 Inc. to PC?

18 Q. Yes.

19 A. No.

20 Q. So there was a JBC, Inc., which dissolved? Is

21 that what you are saying?

22 A. I didn't say that.

23 Q. All right. What is the relationship between

24 JBC, Inc. and JBC, PC?

25 A. None at all.


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1 Q. They had entirely different employees?

2 A. Yes.

3 Q. And you were the president and owner of both?

4 A. No.

5 Q. You were the president of both?

6 A. Yes.

7 Q. And who was the owner of Inc.?

8 A. Boyajian Family Trust.

9 Q. Do you have an office manager at JBC?

10 A. When you refer to "JBC," do you want to

11 stipulate that you mean JBC & Associates, PC, the named

12 defendant in this matter? Because otherwise, I am going

13 to ask you to clarify, because you keep going back to

14 another entity that is independent of the defendants

15 here. So you need to be really clear about who you are

16 asking the questions about.

17 Q. What did the independent JBC entity do?

18 A. "The independent JBC entity," what does that

19 mean?

20 Q. You just described them as independent of the

21 PC.

22 A. Okay. The word "independent" means separate

23 and distinct. Do you want to rephrase your question?

24 Q. What separate and distinct business did

25 JBC, Inc. do?


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1 A. JBC, Inc. is a New Jersey corporation that was

2 engaged in collection activities and no longer is doing

3 so. And JBC, PC is a California professional

4 corporation, a law firm.

5 Q. What does JBC stand for?

6 A. Nothing at all.

7 Q. Wasn't Jack B. Cilingiryan associated with a

8 JBC entity?

9 A. I don't know of a Jack B. Cilingiryan. I know

10 a Jack Cilingiryan. I don't know what a B. Cilingiryan

11 is.

12 Q. Was Jack Cilingiryan associated with one of

13 the JBC entities?

14 A. I believe he was an employee of JBC, Inc. at

15 one time.

16 Q. Did he ever have any ownership in JBC, Inc.?

17 A. No.

18 Q. Who is the office manager of JBC, the

19 defendant in this case?

20 A. I have no office manager, so designated.

21 Q. Who are the officers of JBC, the defendants?

22 A. It is just myself.

23 Q. You are the president?

24 A. I think the -- I will clarify your question

25 earlier. I think you asked me if I serve in any other


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1 offices. I believe I serve as secretary and president,

2 and those are the two officers that is required under

3 California state law.

4 Q. Is there a board of directors?

5 A. No. It is a law firm.

6 Q. Do you have a collection supervisor?

7 A. We have several individuals that I believe

8 have been and continue to serve as lead collection --

9 lead collectors, and if you -- I don't know what you

10 mean by "a collection supervisor." Do you want to

11 define that, because I don't have anyone with that

12 title.

13 Q. What is the title of an employee who would

14 take a leadership responsibility?

15 A. Lead collector.

16 Q. How many lead collectors do you have?

17 A. Several. I don't know exactly how many right

18 now. More than two.

19 Q. Are they organized into teams?

20 A. Not at the moment. We have tried that, but we

21 don't do that any longer.

22 Q. Is JBC your principal source of income?

23 MR. FIANO: Object to the form of that

24 question. I am really not sure how that is material at

25 all.


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1 A. Actually, I don't understand your question.

2 Can you rephrase your question?

3 Q. Do you have get a salary from JBC?

4 A. No.

5 Q. Do you get income from JBC?

6 MR. FIANO: Object to the form.

7 A. I don't know how to answer that because I

8 don't know what you mean by "income." Can you be more

9 specific?

10 Q. Does money get distributed to you as a result

11 of any of your positions at JBC?

12 A. No.

13 Q. Do you get any type of W-2 or 1099 or K-1 from

14 JBC?

15 A. Yes.

16 Q. And which of those three types of forms do you

17 get?

18 A. K-1.

19 Q. And does the K-1 indicate that any money is

20 coming to you or has come to you from JBC?

21 A. That is a very poorly formed question. I

22 don't know what you mean by that. You need to rephrase

23 that because I can't answer that question. I don't know

24 what "coming to me" means.

25 Q. K-1 shows income?


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1 A. Several forms.

2 Q. Right. And the question is, does your K-1

3 show income to you from JBC?

4 A. There are -- first of all, I object to the

5 materiality of this question. I didn't know that this

6 was any -- I don't know why you are exploring my income,

7 but nonetheless, I do have an income attributable to me

8 that I report on my income taxes from the K-1s, yes.

9 Q. Do you also get K-1s from ROA Hutton?

10 A. No.

11 Q. Do you get W-2s from ROA Hutton?

12 A. No.


14 Q. Do you get 1099s from ROA Hutton?

15 A. No.

16 Q. Is your sole source of income reflected on the

17 K-1s that you get from JBC?

18 MR. FIANO: Object to the form. I am not

19 sure how this is material at all, to the point where I

20 will instruct him not to answer the question. I don't

21 know why we are -- I just don't know we are delving into

22 Mr. Boyajian's personal finances. I can't even conceive

23 a link between this lawsuit and Mr. Boyajian's personal

24 finances, especially when we are talking about income

25 sources other than any defendant in this lawsuit. I am


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1 not seeing the link at all.

2 Q. Are you a debt collector, Mr. Boyajian?

3 A. I believe that that requires a conclusion of

4 law, and I don't know how to answer that question.

5 Q. Do you directly or indirectly engage in

6 collection of debts?

7 A. I am an attorney at law that provides services

8 to clients who have debts that are with consumers that I

9 am engaged in recovering for.

10 Q. Do you do that type of work in connection with

11 JBC & Associates?

12 A. PC?

13 Q. PC?

14 A. Yes.

15 Q. Do you do that type of work for any other

16 entity?

17 A. I am not sure I understand that question.

18 That is the law firm which I work in as an attorney, so

19 I don't think -- I think the answer would be no. I am

20 not sure what you are asking me. Am I employed as an

21 attorney with other firms?

22 Q. Yes.

23 A. No.

24 Q. When you do lawsuit -- let me ask you, do you

25 do lawsuits on behalf of the clients of JBC, PC?


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1 A. Yes.

2 Q. And do you do those lawsuits in the name of

3 JBC, PC, or is the plaintiff another named entity?

4 A. Both.

5 Q. Who were some of the entities that you have

6 represented in lawsuits that you have filed for

7 collections?

8 A. They could include a number of entities, which

9 are our clients.

10 Q. Can you name some?

11 A. I am not going to disclose my client list to

12 you.

13 Q. Once you file a lawsuit, it is a matter of

14 public record who your client is; isn't that correct?

15 A. That is not true. If I bring the suit on

16 behalf of a client as an assignee, that is not true.

17 Q. You have to name the client?

18 A. Assignor. I don't believe so, but that is for

19 you to find out, and if it is public record, you can

20 find out yourself.

21 Q. Where do you bring these lawsuits?

22 A. Do you want to be more specific about when you

23 say "you"?

24 Q. No.

25 A. Okay, so you are talking about me personally?


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1 Q. I am taking about you as an attorney for a

2 plaintiff.

3 A. Personally, personally.

4 Q. You understand the rules of ethics that even

5 if you are working as part of a firm, you are also

6 acting personally?

7 THE WITNESS: Can you reread the question,

8 please?

9 (Question read.)

10 THE WITNESS: Thank you.

11 Q. California?

12 A. California.

13 Q. Name some of the entities who have been

14 plaintiffs in the suits you have brought in California.

15 A. I don't understand the relevance of this

16 question relating to this case. Is this case in

17 Connecticut? I don't know why we are discussing my

18 lawsuits in California.

19 Q. Would you answer the question, please?

20 A. I will not answer the question. The answer is

21 available to you in public records.

22 Q. Tell me where I should look.

23 A. Lexus Nexus would be one place to start.

24 There are several firms and entities that provide a full

25 description of the caption, the captioned entities and


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1 lawsuits brought in Superior Court or other courts in

2 California.

3 Q. Do they also reveal the names of the lawyer

4 who brought them?

5 A. Yes, they do.

6 Q. Has JBC ever been licensed as a consumer

7 collection agency in Connecticut?

8 A. Again, you need to be more specific to me when

9 you say "JBC." Did we stipulate that JBC -- when you

10 say "JBC," we mean the defendant, JBC & Associates, PC?

11 I have asked you this question twice now, just to hurry

12 things up. Otherwise I am going to keep asking you what

13 you mean.

14 Q. JBC is a defendant in this lawsuit. You have

15 told me there is no other JBC.

16 A. Okay, fine. I will take that as an answer.

17 No. The answer to your question is no. We have applied

18 several times and responded to information requests

19 several times. We are waiting a decision.

20 Q. When did you first apply for a license in

21 Connecticut?

22 A. I don't recall. It was several years ago.

23 Q. And how many times have you applied?

24 A. We only applied, I think, technically once,

25 but we have resubmitted information several times at


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1 least twice.

2 Q. The ones you applied was several years ago?

3 Was that your testimony?

4 A. I believe it was in 2002.

5 Q. So in 2002, you submitted an application to

6 the Banking Department, and it has not been granted?

7 A. Correct.

8 Q. Did you submit an application in 2003?

9 A. Asked and answered.

10 Q. That is a "yes" or "no."

11 A. My application was outstanding in 2003. I

12 didn't have to reapply. I told you, I applied once, and

13 we were requested for documentation and information, and

14 we responded.

15 Q. Have you been in communication with the

16 Banking Department since your application?

17 A. Members of my staff have been, yes.

18 Q. Who is in charge of that?

19 A. Marv Brandon.

20 Q. So Marv Brandon is the one that would know

21 about the Banking Department licensing application?

22 A. That would be my assumption, because he is

23 responsible for it.

24 Q. When you applied in 2002, did you continue to

25 send collection letters into Connecticut?


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1 A. Yes.

2 Q. Were you aware that the law said that you

3 could not send collection letters into Connecticut

4 unless you were licensed?


6 A. It requires -- that answer requires a

7 conclusion of law. I interpret the law differently than

8 maybe you do.

9 Q. All right. Well, tell me how you interpret

10 the law.

11 A. We are a law firm working in New Jersey,

12 communicating with debtors who may be residing in

13 Connecticut, where transactions may have occurred

14 outside of Connecticut. And we believe that we are

15 acting on the basis of acting as a law firm in

16 New Jersey or Beverly Hills or Massachusetts, and

17 communicating with debtors in Connecticut.

18 Q. Is it your position that because JBC, PC is a

19 law firm, it does not have to be licensed in

20 Connecticut?

21 A. If that is your rephrasing of what I just

22 said, that is your interpretation of what I just said.

23 Q. Is that what you just said?

24 A. Well, I think that is what you have drawn as

25 an inference to what I said.


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1 Q. Well, if I am incorrect, please tell me why.

2 A. Well, I have answered the question. I mean,

3 if you want to infer what I just said as being that,

4 then that's fine. I don't have a -- I will not make a

5 conclusion of law here. If your inference is that I

6 said that, then that's what it is. I have answered the

7 question.

8 Q. Have you or JBC consulted Connecticut

9 attorneys with regard to the question of whether JBC has

10 to be licensed in Connecticut?

11 A. That is privileged information.

12 Q. No, it is not. It is a "yes" or "no"

13 question. I am not going to ask you anything further.

14 A. Yes, I have.

15 Q. And who have you consulted?

16 A. That's privileged.

17 Q. It is not privileged.

18 A. It is not privileged here?

19 Q. No, it is not privileged anywhere.

20 A. Oh, yes, it is.

21 Q. Who you have consulted, no.

22 A. The present firm that is representing me is

23 the one that I have consulted.

24 Q. Is the present firm, which is Kleban & Samor,

25 negotiating with the Banking Department on your behalf?


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2 form of that question.

3 A. Now I don't understand. That I think is

4 privileged.

5 Q. I am asking about third party communications.

6 A. No, they are not.

7 Q. What is the roadblock that is preventing JBC

8 from getting a license in Connecticut?

9 A. I don't know.


11 THE WITNESS: Sorry.

12 MR. FIANO: That's okay.

13 Q. Have you personally contacted the Connecticut

14 Banking Department with regard to JBC licensing?

15 A. No.

16 Q. Do you have any procedures in place to prevent

17 letters from being sent, collection letters from being

18 sent, to Connecticut residents?

19 A. I don't believe so.

20 Q. So as far as you know, JBC is still sending

21 collection letters into Connecticut?

22 MR. FIANO: Object to the form. I don't

23 think he testified that they are sending letters into

24 Connecticut. I think he just testified that they don't

25 have procedures to prevent letters being sent into


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1 Connecticut.

2 MS. FAULKNER: He also testified earlier

3 that they had continued to send letters.

4 A. At that time. I didn't testify -- I think

5 your current question is as of today. Am I correct?

6 Q. Yes.

7 A. I don't know.

8 Q. Have you dealt with any Connecticut attorneys

9 who are representing debtors?

10 A. I don't know what the question is. What do

11 you mean, am I dealing with any attorneys?

12 Q. Have you dealt with? I didn't say, "Are you

13 dealing with." In other words, do you have

14 communication with attorneys in Connecticut who are

15 representing Connecticut debtors?

16 A. Other than this matter, no. I don't think so.

17 Q. Would that be within Mr. Brandon's bailiwick?

18 A. Well, he may know of someone that I am not

19 communicating with, but I don't know of any.

20 Q. Do you know of any that he is communicating

21 with?

22 A. No. You are speaking about someone in

23 particular? I mean, are you talking about a particular

24 attorney, other than yourself?

25 Q. No, I am just asking.


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1 A. Oh, okay.

2 Q. JBC & Associates, Inc., was sued in

3 Connecticut in 1998 for not being licensed as a

4 collection agency in Connecticut; is that correct?

5 A. I don't recall.

6 Q. Was there any effort by JBC & Associates, Inc.

7 to obtain a collection agency license?

8 A. I don't know the relevance of this, but I

9 believe there was, yes.

10 Q. Who would have conducted that effort?

11 A. I don't recall those who were engaged other

12 than myself or Mr. Brandon at that time, so I am not

13 sure.

14 Q. When did Mr. Brandon come on board?

15 A. I believe it was in '90 -- maybe it was in

16 '99, so it could have been myself or Mr. Cilingiryan at

17 that time. That would be the only two that I recall.

18 Q. During 2001 and 2002, who was responsible at

19 JBC, the defendant, for drafting collection letters?

20 A. For what states, and what do you mean by

21 "drafting," and which letters? You will have to be more

22 specific. I am not going to answer general questions

23 like that.

24 Q. How many forms of collection letters did JBC

25 have in 2001 and 2002?


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1 A. Several hundred.

2 Q. Several hundred forms?

3 A. Yes. Are you narrowing your jurisdiction to

4 Connecticut only?

5 Q. Not yet.

6 A. Oh, okay. Then my answer stands.

7 Q. How many forms of letters were Connecticut

8 specific?


10 Q. Did you submit those forms to the Connecticut

11 Banking Department in connection with your licensing

12 application?

13 A. If it was a requisite in the application, I am

14 certain we did, but I believe your time frame was --

15 2001 is your question?

16 Q. 2001, right, 2001 and 2002?

17 A. So that would not have been relevant with

18 respect to the licensing because I believe we first

19 applied for licensing in 2002, as I testified before.

20 Q. 2002. I did say your form letters for 2001

21 and 2002.

22 A. When your question related to the entire

23 country, and I answered that appropriately, your next

24 question related to 2001 in Connecticut.

25 Q. Well, I'm sorry. I thought it related to 2001


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1 and 2002. So how many form letters did you have in 2001

2 and 2002 directed to Connecticut?

3 A. Well, I don't recall exactly in either year,

4 so I am not going to be able to answer that with

5 specificity.

6 Q. Where would the records be?

7 A. Well, we don't retain letters that we don't

8 use any longer in form, but if you ask me a more current

9 question, I am sure I can respond.

10 Q. Where are the letters that you are currently

11 using for Connecticut?

12 A. They are in our system, our server.

13 Q. Is your server at the New Jersey location?

14 A. Yes.

15 Q. Tell me the process of sending a letter, say

16 to [Consumer]. How would a letter be generated?

17 A. At the current time?

18 Q. Yes. How would a letter be generated to her?

19 A. We would identify a particular letter to be

20 sent to a particular debtor, and that letter would be

21 requested on that account, and the system would scan all

22 the accounts and see that there is a letter requested

23 for a debtor, particular letter type and letter number.

24 And then that would be transmitted. That information

25 would be transmitted to our letter production and


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1 mailing facility, which is outsourced, and the letters

2 would be generated at that facility and sent out within

3 24 hours.

4 Q. Is your outsource facility in Michigan?

5 A. I think they are, yes. I think they are in

6 Detroit or in that area.

7 Q. You said a letter would be requested for a

8 particular debtor. Who decides what letter is

9 requested?

10 A. Generally, I do.

11 Q. If a letter went to [Consumer], you yourself

12 would decide which letter should go to her?

13 A. We use several different techniques to

14 decide -- I use several different techniques to decide

15 which letters go to whom. So I am not sure if I

16 answered your question, but if I haven't, you will have

17 to ask me a different question so I can be more

18 specific.

19 Q. If JBC were sending a letter to [Consumer] --

20 A. So we are going to be -- we are going to now

21 hypothecate something, right? We are going to say that

22 something exists that doesn't?

23 Q. We are going to say, how does it get produced.

24 How do you decide which letter goes to [Consumer], who

25 lives in Connecticut? What are the factors?


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1 A. Let's -- I don't like hypotheses, but we will

2 do what you want. Are you asking me what letters went

3 to [Consumer] when her account was introduced into our

4 system?

5 Q. No, I am asking generally.

6 A. Depends on a number of factors.

7 Q. That is what I am asking. What factors; her

8 residence, the creditor, the debt? What factors?

9 A. Of course. The question is what type of --

10 where did the debt originate, in what transaction, in

11 what form. Was it an involuntary credit extension, such

12 as a check? What is the location of that individual?

13 What is the amount of the check, the date of the check,

14 the creditor itself, the original point of sale

15 creditor? Has there been any payments made against that

16 account, at what time? Do we have any reason to believe

17 that it was a fraudulent transaction, occurring by

18 someone other than the named debtor?

19 Has there been a bankruptcy filed? Has there

20 been any reason to believe that the transaction occurred

21 outside of the state, and therefore, applicable to other

22 statutes? What was her last communication with our

23 office? Are there other accounts on our system that

24 relate to that debtor with the same demographic

25 information? Those would be some.


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1 Q. Are those factors built into the system or is

2 it something you decide per case?

3 A. Both.

4 Q. Is --

5 A. Or maybe the answer is either.

6 Q. Are your collectors allowed to generate or

7 decide what letters go out?

8 A. No.

9 Q. Who other than you decides what letters go

10 out?

11 A. No one.

12 Q. Do you decide the -- I presume the letters

13 have variables. Do you decide what variables go in?

14 A. I have just named those.

15 Q. No, into the letter itself, into the body of

16 the letter?

17 A. Well, that would lead to a different -- I

18 think you are asking me, did I draft a letter, because

19 the variables are what they are with respect to each

20 named debtor, right? Are you asking me did I formulate

21 the letters as to what fields should go in there?

22 Right?

23 Q. Okay.

24 A. The answer is yes. I have been involved. To

25 most of the degree, I make the final decision on what


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1 letters are sent out and what they contain.

2 Q. How many hours a week do you spend at JBC?

3 A. Too many.

4 Q. Which means 10, 50? What does it mean?

5 A. I have never really taken account. I work

6 from my home as well as from the office as well as from

7 the various offices around the country. So I couldn't

8 answer that question fairly.

9 Q. Is there a person named G. Strit, S-T-R-I-T,

10 at ROA Hutton?

11 A. Again --


13 A. Or the relevance, really? I mean, come on.

14 Q. It is a "yes" or "no" question.

15 A. No, there is not.

16 Q. Who uses that e-mail address?

17 A. I don't know. I don't know.

18 Q. Do you have something called a Check Recovery

19 Program?

20 A. You just went from ROA Hutton on to me in your

21 question. Are you asking me personally?

22 Q. I am asking JBC. You are the president. You

23 are the boss. You know what goes on there.

24 A. That is fine. You just went from ROA Hutton

25 to "you."


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1 Q. I'm sorry. I confused you.

2 A. There was a document created sometime ago that

3 was labeled "Check Recovery Programs," which was a --

4 well, that is the answer. I think your question was, do

5 I know of a Check Recovery Program?

6 Q. Right.

7 A. Yes.

8 Q. And is that in use at JBC?

9 A. Not any longer.

10 Q. Was that trademarked?

11 A. I believe an application was made, but I

12 believe that we never followed through on completing the

13 trademark application.

14 Q. How long was the check recovery program in

15 use?

16 A. It has never been in use with PC. It was used

17 by JBC, Inc.

18 Q. And what was the program? What did it do?

19 A. It was a restatement of work standards that

20 would be used during a collection cycle for specifically

21 a bad check type of debt.

22 Q. What is JBC'c, the current JBC's, volume of

23 bad checks as compared with other types of collection?

24 A. I don't have a specific number in terms of

25 distribution or proportion.


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1 JBC or a subsidiary or somehow corporately related?

2 A. No.

3 Q. And are you the president of that?

4 A. I was at one time. I am no longer.

5 Q. Who is the president?

6 A. It does not have a president right now.

7 Q. Who is the operations manager?

8 A. Joel Gallante has been predominantly the

9 manager of that entity.

10 Q. Has he worked with JBC in the past?

11 A. Yes, he has.

12 Q. And what is his position?

13 A. He has been the customer service

14 representative.

15 Q. Who is Anthony Esposito?

16 A. He was at one time an employee of Outsource

17 Recovery Management.

18 Q. Is he associated with Outsource or JBC now?

19 A. No.

20 Q. How about Vito Capio?

21 A. No.

22 Q. I am going to show you a picture of what was

23 Plaintiff's Exhibit K at Mr. Brandon's deposition and

24 ask you whether you recognize the office that is

25 pictured on that document.


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1 A. I believe it is a picture on the website for

2 JBC. There are two pictures -- three pictures,

3 actually, on this exhibit, so I am not sure you are -- I

4 assume you are referring to the larger of the three.

5 Q. The picture with people in it. Are you in

6 charge of the JBC website?

7 A. I was involved in its original creation to

8 some degree when it was JBC & Associates, Inc.'s

9 website.

10 Q. Who is in charge of the website at the moment?

11 A. Well, we don't have someone right now directly

12 in the website management because it doesn't change

13 much. It was static. It sits on our server.

14 Q. Do you decide, or did you decide before it

15 became static, what went on the website?

16 A. I think I answered that.

17 Q. You answered it as to JBC, Inc., I believe.

18 A. Yes.

19 Q. What about JBC, PC?

20 A. No, I am not involved.

21 Q. Who is Geronimo 57?

22 A. I don't know.

23 Q. Do you outsource the development of the

24 website?

25 A. No.


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1 Q. When is the last time you looked at the

2 website?


4 Q. One of the things on the website says that you

5 can be assured that every account placed will be handled

6 professionally and within full compliance of all state

7 and federal laws. Did you draft that?


9 Q. Is that true?

10 A. With respect to JBC & Associates, Inc., it may

11 have been true.

12 Q. Is it true with respect to JBC, PC?

13 A. Oh, I believe we are professional and comply

14 with local and state laws, yes.

15 Q. It also says, "Our in-house attorneys are

16 fully responsible for insuring compliance by the staff

17 associates and corresponding attorneys in all 50

18 states." Is that true?

19 A. We do our best.

20 Q. Do you have corresponding attorneys in all 50

21 states?

22 A. Yes.

23 Q. Do you recognize the office that is pictured

24 on Exhibit K?

25 A. That is a picture in the public domain that is


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1 used for graphical purposes.

2 Q. So that is not a picture of a JBC office; is

3 that correct?

4 A. Not this particular one.

5 Q. And you don't know any of the people in that

6 picture; is that correct?

7 A. I may have met some of them, but I couldn't

8 remember.

9 Q. This talks about strategic planning. "We

10 train our staff on the latest strategies and encourage

11 input from all our staff." Is that true?

12 A. Are you referring to the same document?

13 Q. Exhibit K, yes.

14 A. Exhibit K?

15 Q. Yes.

16 A. I would say that would be applicable to both

17 JBC, Inc. and JBC, PC.

18 Q. Who does the staff training?

19 A. We have several individuals that rotate in

20 training staff and retraining them. It doesn't

21 necessarily mean the beginning nor the end of a training

22 period. We train our staff consistently.

23 Q. Do you participate in the training?

24 A. Occasionally, yes.

25 Q. Are there fairly regular staff meetings to


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1 pursue training?

2 A. I don't know what you mean by "staff

3 meetings." Do you mean management or do you mean

4 actual -- what do you mean?

5 Q. I generally meant collection staff.

6 A. We have methods in which we train groups,

7 smaller groups.

8 Q. Does that involve periodic meetings of those

9 groups?

10 A. Nonscheduled meetings, yes.

11 Q. What is the latest training session that you

12 can recall for collectors?

13 A. In which I attended?

14 Q. Yes.

15 A. About three weeks ago.

16 Q. What was the topic of the session?

17 A. Accountability.

18 Q. Are your collectors paid an hourly wage?

19 A. Yes.

20 Q. Are they also paid a commission?

21 A. They have bonus structures.

22 Q. And does bonus structure depend on how much

23 they are able to collect?

24 A. Not necessarily.

25 Q. What does it depend on?


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1 A. Their attendance, the number of lates, late

2 arrivals. It includes their ratio of promises to broken

3 promises, time on the phone, time away from their seats,

4 collection, gross dollars or net dollars collected, time

5 period that they have been with the company, longevity,

6 where they stand amongst their peers in all those

7 categories, how they rate.

8 Those are the only ones I can really think of

9 right now. I am sure there is others.

10 Q. Are there contests sometimes with staff?

11 A. I don't know what you mean by "contests."

12 Q. You know, the first one to get a

13 hundred-dollar payment, first one to get a

14 hundred-dollar promise, if you go over "X" dollars

15 today, something like that could be tests, so that the

16 staff are competing?

17 A. No, we don't do that.

18 Q. Exhibit K also says, "There is a focused and

19 tailored letter series complemented by daily contacts."

20 Is that true?

21 A. Is what true, with respect to what, by whom?

22 Q. Exhibit K is JBC, PC's website. Is the

23 quadrant that talks about letter series true?

24 A. Miss Faulkner, this is advertisement. It is

25 puffery. Every account is handled different, depending


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1 upon the components that we have already discussed and

2 have answered your questions about. I didn't realize

3 that this deposition was relating to our advertising.

4 Is it?

5 Q. With regard to Exhibit K, there is a quadrant

6 that talks about computer-aided auto strategies. What

7 does "computer-aided auto strategies" mean?

8 A. It means the process in which accounts are

9 handled through our system, the life cycle of that

10 account, and its ability to take advantage of all of the

11 JBC & Associates, PC resources, so that the account can

12 be fully handled for the client and ultimately be

13 recovered.

14 Q. When JBC is assigned an account by a client,

15 is there a time frame in which it works the account and

16 then sends it back to the client?

17 A. Occasionally. Depends on the client.

18 Q. Generally speaking then, JBC would keep the

19 account until it recovered; is that correct?

20 A. I don't know what "JBC keeping an account"

21 means. JBC is assigned this work typically on a

22 contingency basis. It is at the client's request that

23 the accounts can be returned, and we return a great

24 number of accounts.

25 Q. JBC returns the accounts if a client asks for


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1 them? Is that what you are saying?

2 A. No. We will voluntarily return them as well.

3 Q. What occasions would result in a voluntary

4 return to the client?

5 A. If in my opinion, and those of others who work

6 accounts, all efforts have been exhausted.

7 Q. Would there be occasions when an account is

8 closed but not returned?

9 A. Not typically.

10 Q. Who decides whether an account is returned if

11 the creditor does not ask for its return?

12 A. Ultimately, I do.

13 Q. Does JBC report to credit bureaus?

14 A. Just begun to.

15 Q. When you say "just begun," how long ago would

16 that have been?

17 A. Months.

18 Q. So then 2001 and 2002, you did not report to

19 credit bureaus?

20 A. That's correct.

21 MS. FAULKNER: Can we take a break for a

22 few minutes?

23 (Recess: 11:50 to 11:55 a.m.)

24 Q. Mr. Boyajian, Marvin Brandon described his

25 role at JBC as essentially part time and his purpose to


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1 respond to attorneys' calls or letters. Would you agree

2 with that description?

3 A. No.

4 Q. What is his role at JBC?

5 A. He is a full-time attorney who works flexible

6 hours. He comes to the office at the moment when he

7 can, and he has been in the office less and less, but he

8 works -- he is available and works at home as well, so I

9 would characterize him as a full-time attorney. He is

10 supposed to do a lot more than just respond to

11 attorneys, and I think he does.

12 Q. What else do you think he does?

13 A. I think he reviews accounts. He looks at --

14 he oversees litigation and Associates' network of

15 attorneys that we use nationwide to litigate accounts.

16 He reviews FDCPA requirements and state requirements and

17 advises myself and others in the company as to what

18 compliance requirements might be. He speaks to

19 attorneys and debtors. He writes memos. He

20 participates in training. Those would be general

21 responsibilities.

22 Q. Can you tell me, what is Attorney General

23 Carl McGraw's interest in JBC?

24 A. Well, you will have to ask him yourself.

25 MR. FIANO: Objection to the form.


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1 Q. The attorney general seems to think that JBC

2 is violating West Virginia collection laws; is that

3 correct?


5 form. Again, this is one particular line of questioning

6 that I am not sure how it is material at all to these

7 proceedings.

8 A. You are reading from his website.

9 Q. Yes.

10 A. Ask him. Subpoena him and ask him.

11 Q. He subpoenaed you. Did you appear on

12 December 12, 2003?

13 A. We did not have to.

14 Q. And why is that?

15 MR. FIANO: I am going to object to the --

16 I am going to object to the form of the question. Also,

17 if it is another legal proceeding going on, I don't know

18 to what extent they have been advised by counsel in that

19 matter. I don't know to what extent we are getting into

20 just communications that have to do with another legal

21 proceeding.

22 Q. Attorney General McGraw claims that he is

23 trying to get an order prohibiting JBC from collecting

24 debts in West Virginia until it complies with

25 West Virginia's collection agency licensing and bonding


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1 laws; is that correct?

2 A. I don't know what the question is and I don't

3 know what you are reading from. If you are reading from

4 his website, it is what it is. I can tell you that he

5 has withdrawn that requirement.

6 Q. What requirement?

7 A. The requirement you just read.

8 Q. To comply with West Virginia collection agency

9 laws?

10 A. Yeah.

11 Q. Is it your position that JBC is in compliance

12 with West Virginia licensing laws?


14 A. Yes.

15 Q. And before November of 2003, was JBC in

16 compliance with West Virginia licensing laws?

17 A. Indeed.


19 THE WITNESS: I'm sorry.

20 MS. FAULKNER: Why don't we mark this as

21 Exhibit M?

22 (Plaintiff's Exhibit M: Marked for


24 Q. Mr. Boyajian, you seem to be familiar with the

25 West Virginia Attorney General's website. Have you also


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1 looked at it?

2 A. I recall seeing that.

3 Q. The attorney general said that several

4 consumers had complained that JBC was attempting to

5 coerce payments of alleged bad checks by threatening

6 arrest and criminal prosecution, harassing consumers

7 repeatedly by telephone, and refusing to provide copies

8 of canceled checks.

9 MR. FIANO: Object to the form. Are you

10 asking him if knows that the attorney general said that

11 or that is what the website says?

12 Q. Is that correct, that the Attorney General

13 says that?

14 A. I don't know. I know that that is what the

15 website says. You shouldn't believe everything you read

16 on the Internet. Caution, you should really be cautious

17 about that.

18 For example, you notice that he calls us "a

19 New Jersey collection agency." We are not a New Jersey

20 collection agency, if he is referring to JBC &

21 Associates, PC. I assume he is.

22 Q. What does the West Virginia statute say about

23 who is a collection agency?


25 A. I don't know. Maybe you should read the


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1 statute. It might be more clear to you.

2 Q. What does Connecticut say about who is a

3 collection agency?

4 A. I think it is clear in the statute what it

5 says. The interpretation is another issue.

6 Q. Are you familiar with the Bad Check Statute in

7 Connecticut?

8 A. To some degree.

9 Q. What do you know about that?

10 A. You mean the civil statute?

11 Q. Right.

12 A. That there is a service charge, and that after

13 a certain number of days, if it is not recovered, after

14 they receive letters, those debtors are potentially

15 liable for the face value of the check, plus the service

16 charge, plus the face -- other damages amounting to the

17 same of the face value of the check.

18 Q. Did you personally research that statute?

19 A. I don't recall what my research was with that

20 particular statute.

21 Q. Do you have a system to know whether a check

22 was passed in Connecticut that later bounced?

23 A. It would depend on what the client provides

24 us.

25 Q. If you will look at Exhibit G, please, yes.


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1 Can you tell me what Exhibit G is?

2 A. It is an in-artful attempt by the computer

3 system, CRS Software, to describe the various

4 information relating to a particular account.

5 Q. Why is this in-artful?

6 A. Because it only lists one of the checks as the

7 top header of the fact sheet without identifying the

8 fact that there is multiple checks that might be

9 attached to this master account. This is a master

10 printout. The master number is the CRS number that is

11 on the top left corner, and it only identifies one

12 particular check here.

13 Q. How is a master number treated? Is it per any

14 accounts for Wilson Suede & Leather?

15 A. No. A master is generally related to an

16 individual or an entity, singular, and any debts that

17 would have matching characteristics to that, to those

18 demographics of that individual or entity, would be

19 consolidated into one master account.

20 Q. Let me show you Exhibit L and ask you what

21 that is.

22 A. It is just one of the pages of a fact sheet

23 which identifies payments. The header is -- the top

24 portion of it is identical to what Exhibit G is.

25 Q. Doesn't that reflect a different check?


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1 Doesn't Exhibit L reflect a different check than Exhibit

2 G does?

3 A. Yes, and that is part of the problem with

4 these fact sheets. So we have identified this as a

5 problem for CRS, and they are working on it. This was

6 printed on the same day as Exhibit G, and yet at the

7 time that this was written, I know that there was 23

8 checks that your client had written and was bounced that

9 we had among this master account. And only one or two

10 of them are appearing in the fact sheets.

11 Q. Exhibit L has a different account number from

12 Exhibit G?

13 A. No. It has a different -- it has the same

14 master number, 562183.

15 Q. Right, but it has a different account number?

16 A. That account number is the -- is not an

17 account number from the GW -- that is a GWA account

18 number. It is a different -- CRS is a new system. GWA

19 was the old system. And in the GWA system, our account

20 numbers were referenced differently, and so that is why

21 these two different checks -- from the 23 or 25 that

22 your client wrote back as bad checks, only two are being

23 represented in this fact sheet, as compared to 25 of

24 them.

25 Q. I will have to ask you or Mr. Fiano where are


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1 the rest of the 25 checks, because I haven't got any

2 documentation of that many checks.

3 A. Well, we will be happy to give you those.

4 Q. Thank you. Now, tell me the difference

5 between the CRS and the G --

6 A. WA.

7 Q. GWA. Tell me the difference.

8 A. It is just two different computer systems.

9 Q. And when did you transfer from one to the

10 other?

11 A. 2001, sometime in 2001. I don't recall the

12 exact date. I think it was April or May. Well, could

13 have been July.

14 Q. Now, you said your clients give you

15 information about the factors that would lead to the

16 Connecticut bounced check statute. What information did

17 Wilson Suede & Leather give JBC about this plaintiff?

18 A. Well, it is not on this particular fact sheet,

19 but typically there is a transaction statement which is

20 sent in electronically. These accounts are placed

21 electronically, and that would determine the state in

22 which the transaction occurred. Typically, it is in the

23 same state that the owner -- that the debtor lives in,

24 but not always. In fact, very often it is not.

25 Q. What information about this plaintiff did


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1 Wilson Suede & Leather give you other than what appears

2 on this fact sheet?

3 A. "This fact sheet" being G --

4 Q. Yes, thank you, & L, of course.

5 A. -- & L, check number, check date, transaction

6 state, driver's license number.

7 Q. Where is the driver's license number?

8 A. It is not on here. Neither is the state --

9 state transaction code. It is not on this document. It

10 is on your Document F.

11 Q. Right, but that isn't -- that is in answer to

12 discovery? That is not a fact sheet issue?

13 A. Right.

14 Q. This document, G, starts on July 10th of 2001?

15 A. That is probably only when we brought it over

16 from the GWA system.

17 Q. And up on the left-hand side, above the double

18 lines, there is a previous GWA ID and an old GWA?

19 A. Strategy.

20 Q. Strategy, 2/25?

21 A. Yes.

22 Q. On the right-hand column of Exhibit G appears

23 to be initials. Do your initials or identification

24 numbers appear on Exhibit G?

25 A. "SYS" is mine, but I generally go in as "SYS."


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1 The "R00" may also be something that I use as part of

2 the process of actually initiating the letter. The rest

3 are not. "MB" is for the second page of G.

4 Q. Can you tell what Brandon did on the second

5 page of G?

6 A. He changed the status to 31.

7 Q. And what does that mean?

8 A. No. He changed the status to 49 from 31.

9 Q. What is status 31?

10 A. I don't remember. I think it is legal review

11 for legal process, I believe. And 49 is closed per

12 attorney. That is what appears on the first page of G.

13 Q. On the first page of G, it says "date last."

14 What does that mean?

15 A. "Date last," I don't know. That could be date

16 last -- it should be the date of the check, but I think

17 for the conversion purposes, because it was brought over

18 from GWA, it was the date received in the GWA system, I

19 believe.

20 Q. On 6/24, when Mr. Brandon changed the status,

21 there is an old 20 lines or so ending with "DMP." What

22 does that mean?

23 A. Those were the accounts that were consolidated

24 into those master, Miss Faulkner. These were accounts

25 that were not part of this master, and they were merged,


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1 and that is how this account went from having four

2 checks to having 25 checks.

3 Q. And where do you see four checks?

4 A. I don't. I know by reviewing with my office

5 this morning that previous to that consolidation with

6 those mergers, there were four checks on this account.

7 Q. To Wilson Suede & Leather?

8 A. I don't know. I can find out for you. But

9 the two were to Wilson Suede & Leather, Check Numbers

10 287 and 189, but there was also two other checks, Check

11 Number 186 and 292, written on January 28, 1996, and

12 January 26, 1996, for 178.95 and 354.17 respectively.

13 Q. Those were also written to Wilson?

14 A. I have to check, but I think they may have

15 been, yes. I am pretty sure they were. I can't be very

16 certain, but I will try to get that information.

17 Q. Is Wilson any relation to Melville?

18 A. They owned it. Melville owned it at one time.

19 Q. Melville owned it at one time?

20 A. Yes. They continue to service the checks

21 after they sold it.

22 Q. How about CVS?

23 A. They own CVS.

24 Q. Who owns CVS?

25 A. Melville.


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1 Q. What about Marshall's?

2 A. They owned that too, at one time.

3 Q. Melville owned it at one time?

4 A. Yes.

5 Q. And when did they stop owning Wilson?

6 A. I don't know. I don't know when they sold it,

7 but they kept the servicing of these returned checks as

8 part of their deal.

9 Q. Who were the other entities that may be listed

10 on page 2 of Exhibit G?

11 A. Foot Action is "FTA."

12 Q. I'm sorry?

13 A. Foot Action. "K" is KV Toys. "Bob" is Bob's

14 Stores, and "Maral" is Marshall's. "Toys" is Toys 'R

15 Us. It has nothing to do with Melville. That is on

16 page 3.

17 Q. So Toys is the only one of all these that has

18 nothing to do with Melville?

19 A. Apparently.

20 Q. Did Melville own Bob's?

21 A. Yes.

22 Q. Is there any way the account would be opened

23 after Brandon said it had to be closed?

24 A. Yes.

25 Q. How would that happen?


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1 A. By an inferior programming in CRS that we

2 discovered that once the account is closed, it has the

3 opportunity to be merged with a new account, a new debt,

4 without our knowledge. Unless someone actually saw that

5 and looked at all the notes prior to it, it actually

6 changes the status to a new status -- the master account

7 to a new status, and reopens all the debts. We have

8 since corrected that, but at this point in time, it was

9 actually happening without our knowledge. Excuse me.

10 Did I answer your question?

11 Q. Are you finished with your phone call?

12 A. Yes.

13 Q. If an account is reopened, does the history

14 that is Exhibit G get transferred as well?

15 A. When it was being reactivated with our

16 knowledge and consent, I believe the history was still

17 available, not on the same screen, but I think you can

18 go behind the screen and see the history.

19 Q. So if you were to sit down and look at

20 [Consumer's] account, if a new account came in, you would

21 be able to see the old accounts; is that correct?

22 A. If you looked for it, you would be able to see

23 it. At first glance, on the first screen, you would

24 not. You would see the new account. You would see the

25 new status, and you would think that this is a new


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1 account, and that there is no other accounts associated

2 with it. If you are perceptive enough to see a certain

3 flag that says that there is other accounts in the

4 system, you can go in and look for the other accounts --

5 the other debts, I should say.

6 Q. Were any of these accounts that appear on

7 Exhibit G returned to Melville?

8 A. Eventually you mean?

9 Q. Any time, that you can see right now on this?

10 A. On this statement, I don't see any.

11 Q. Then if you look at page 2, it says "Merge

12 from," and a couple of lines, and then it says "UNRTRN."

13 Can you tell me what those two --

14 A. No. Without further research, I couldn't tell

15 you. The CRS Software has not been very user friendly,

16 and occasionally our server, as well as individuals in

17 our company, incorrectly status something in their

18 attempt to be doing something else. And this could have

19 been an occasion where an account was inadvertently

20 returned and then unreturned as a corrected measure.

21 Q. What do you mean by "returned" and

22 "unreturned"?

23 A. I am assuming that the "UNRTRN" means

24 "unreturned," as I assume you are meaning that. I think

25 your question is or was, are there any accounts


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1 returned, presuming meaning unreturned into this

2 account, right?

3 Q. Yes.

4 A. And I was anticipating that and I was

5 answering the question.

6 Q. I didn't understand the answer then, so you

7 have to try again.

8 A. The CRS Software has not been user friendly.

9 It has occasionally returned accounts that were not

10 intended to be returned based on a change of status,

11 because it had not been properly flagged as a

12 non-returned status. So if you change an account in the

13 status and it was incorrectly formulated as being a

14 returned status rather than as an open status or as a

15 legal status, it winds up returning an account. But you

16 really didn't intend to return it, so you have to

17 unreturn it into another -- into a master account.

18 Q. I guess I don't understand what "unreturned"

19 means then.

20 A. Well, it just reverses your status. It just

21 reverses the incorrect activity of returning an account.

22 Q. What does "returning an account" mean?

23 A. Typically, you want to return an account to a

24 client because they either withdraw the claim, called it

25 back. We determined that it was -- I think we have


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1 discussed this already. Our efforts have been

2 exhausted, and we don't wish to continue working the

3 account. And certain types of closed statuses are -- by

4 definition or by typical status, it would be returned,

5 like paid prior to placement or placed in error, or you

6 know, those type of statuses would be return statuses.

7 Q. Has JBC or the other company, Outsourcing,

8 purchased any of these checks, [Consumer's] checks?

9 A. No. JBC doesn't purchase checks.

10 Q. I said "or the other company"?

11 A. Right. Neither one.

12 Q. Neither one has purchased --

13 A. No.

14 Q. If JBC had an agreement with anyone here to

15 collect these, it would have been with Melville; is that

16 correct?

17 A. No. Our agreement -- we have a standing

18 agreement with Toys 'R Us as well. And I believe

19 Toys -- two accounts were with toys. Is that your

20 question?

21 Q. I understood from a previous answer that you

22 were collecting for Melville, that Melville owned all

23 these companies?

24 A. Right.

25 Q. So my question is, were you in agreement with


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1 Melville as far as collection?

2 A. Yes.

3 Q. Who was your contact at Melville?

4 A. Apparently, it is Jim Bradford.

5 Q. Does Melville exist?

6 A. I am not sure. I think Melville and CVS

7 Corporation are now successors. They are one and the

8 same, with CVS Corporation being a successor in interest

9 to Melville.

10 Q. Why don't you look at Exhibit H, which I think

11 has your --

12 A. There.

13 Q. So that Exhibit L, which is an assignment from

14 CVS to JBC, Inc. --

15 A. Right.

16 Q. -- is the sole authorization for JBC, PC's

17 collection efforts; is that correct?

18 A. No. I think there is a document that

19 authorizes JBC, PC to pursue accounts. If there is no

20 document, there is an oral agreement, and we do work on

21 oral agreements. This happens to be the assignment, the

22 assignment of accounts to JBC, Inc., not to PC. Is that

23 your question?

24 Q. Right.

25 A. Yes. This is only relating to Inc., not PC.


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1 Q. Right, and I should have gotten an assignment,

2 if there was one, to PC.

3 A. If there is one in your document request. It

4 might have been an oversight, and they thought that they

5 were responsive to your requests, but obviously, not

6 fully.

7 Q. There is a 25-dollar amount on Exhibit G for a

8 check fee. Is that included in the amount referred or

9 added to the amount referred?

10 A. Referred from whom?

11 Q. I am just reading Exhibit G, which says

12 "Amount referred." Does that 243 include the $25?

13 A. No. That is the amount of the check. The

14 amount referred is the amount of the check.

15 Q. And the 25-dollar check fee, is that something

16 that JBC adds or Wilson added?

17 A. They add their own, and then they send us the

18 accounts, and we add whatever the statutory requirement

19 or allowable amount is.

20 Q. So if the amount referred was $243, then you

21 would add the $25?

22 A. You are speaking of that particular account.

23 I answered this question.

24 Q. Okay. Tell me about this particular account

25 that is on Exhibit G.


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1 A. Well, in this particular account, it appears

2 that that is the face value. The 243.79 is the face

3 value of the check written and the $25 is added thereto.

4 Q. Is that added at JBC?

5 A. I have answered that question. When Melville

6 was working this account, there are other assignees or

7 agencies or collection law firms. They would have their

8 own fee that they thought was applicable to Connecticut.

9 I don't trust their fee schedule. I do my own. So I

10 only ask them to send me their face value, and we apply

11 what we believe is the appropriate service fee.

12 Q. So why does the $25 fee appear on Exhibit G?

13 A. Because we believed at that time that is what

14 was allowable under Connecticut law to add as a service

15 fee.

16 Q. So that all your collection efforts added the

17 $25 to that 243 check?

18 A. In this particular case, yes.

19 Q. And is there a way that you can confirm that

20 this is what happened her here?

21 A. I think it is reflective of the documents, so

22 I am not sure if you are asking me, did I have any

23 further assurances that that is what happened here.

24 Q. Yes.

25 A. I am sure there is other places on my system


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1 that I can -- that would reflect that fact, yes.

2 Q. Where would you look?

3 A. In different screens.

4 Q. What would the screens tell you?

5 A. The fact that the face value of the check was

6 $243.79 and the service fee of $25 was added to it.

7 Q. Would that service fee be included in the

8 collection letter?

9 A. The first collection letter, it would state

10 that, yes.

11 Q. First collection letter would say 243 plus 25?

12 A. Yes. There is a grid that is presented on the

13 first letter.

14 Q. Turn to Exhibit B. Is that the sample first

15 letter?

16 A. Appears that way, yes, but in this case, $20

17 is being used because I think subsequent to that letter,

18 the statute either changed or we interpreted it

19 differently, so we are now adding $20 and not 25 per

20 check.

21 Q. So as of this letter of September 23, 2002,

22 you were adding a return charge of 25; is that correct?

23 A. No, 20. September 5th, September 5th.

24 Q. Exhibit B --

25 A. Right.


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1 Q. -- is a letter dated September 23, 2002.

2 A. Right. It looks like a real letter that went

3 to a real person, okay.

4 Q. Is that correct?

5 A. I am not sure, but I assume so.

6 Q. Under "Return charge," it says "$25"?

7 A. Yes, but I think that that is incorrectly

8 typed, and if you look at the face of the letter, the

9 second full paragraph, it clearly states it is $20.

10 Q. On the upper left of Exhibit B, there is a

11 number above the bar codes, which end in "CT." Does

12 that indicate that this is one of the letters that JBC

13 uses in Connecticut?

14 A. Yes. It would reflect that this was the first

15 letter that goes out for a bad check writer, that the

16 transaction was in Connecticut.

17 Q. How can you tell it was the first letter?

18 A. Because there is a "001" in front of the "CT."

19 Q. Plaintiff's Exhibit C is another letter also

20 dated September 23. Is that the second letter that goes

21 into Connecticut --

22 A. It could be.

23 Q. -- as of September 23?

24 A. It could be.

25 Q. If you look down at the bottom, there is a


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1 very, very -- "2 CT"?

2 A. Yes.

3 Q. Are you still using the sample letters in

4 Connecticut, B and C?

5 A. I have answered what question. I do not know

6 if there are letters going to Connecticut right now.

7 You asked me that question before.

8 Q. I asked you -- I didn't ask you whether you

9 were using these letters.

10 A. And I wouldn't know either case. I am not

11 sure if these letters have changed since September 23rd,

12 2002.

13 Q. Were there more than two letters, two forms of

14 letters, going into Connecticut in September, 2002?

15 A. There could have been, yes.

16 Q. Do you have those stored on your system

17 someplace?

18 A. Unless they were deleted, they would still be

19 there, yes.

20 Q. Would you have your sample letters from

21 November, 2001, in your system?

22 A. I doubt it, but it is possible. No, it is

23 possible. It should still be there.

24 Q. I did ask for that in discovery, and I would

25 like it, please.


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1 A. They may be the same as these though, so you

2 might have gotten the response that you were looking

3 for. In other words, if nothing changed between

4 November 1st of 2001 and September 23rd of 2002, then

5 you received what you asked for.

6 Q. But if something did change, I did not receive

7 what I asked for?

8 A. That's right. What I am saying is that at the

9 time that we may have been responsive to your document

10 production, it would have given us an opportunity to

11 make those comparisons, whereas I don't have that

12 ability today to do that. So the response you received

13 is probably in my mind more accurate than my testimony

14 here today specifically relating to these two letters.

15 Q. But if there is a difference, you will go back

16 in your machine?

17 A. If that is your request, it will be a new

18 request, and I will be able to address that. What I am

19 saying is we may have already addressed -- I don't want

20 the court record to appear as if we were agreeing that

21 we were non-responsive because we could have been very

22 much responsive. It is just you are asking a new

23 question that I can't answer.

24 Q. The record will show that it is the same

25 question that we asked in discovery.


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1 MR. FIANO: I will say this for the

2 record. We will go back into our system, and if there

3 were some letters in November of 2001 that were somehow

4 different than what we have already disclosed, then we

5 will definitely provide copies of any sample letters in

6 November, 2001, that were different than what has been

7 disclosed thus far.

8 I think Mr. Boyajian will say that he thinks

9 at the time, that comparison might have occurred

10 already, and that was produced as responsive, as these

11 letters being the same -- being essentially the same in

12 content as anything on their system that might have been

13 in place in November, 2001.

14 Q. What procedures have you had in place in and

15 since November, 2001, to make sure that the right amount

16 goes into the letter, right dollar amount, that is owed

17 by the debtor?

18 A. When we converted our information systems to

19 the CRS Software, they did not have a state by state

20 ability to place a check fee amount automatically. We

21 have to design that into the system. And after several

22 series of errors and programming errors that we have

23 discovered slowly, over time, I think we are now

24 confident that we have properly identified the service

25 fees that are related to each such check, or non-check,


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1 for that matter, if there is any additional fees that

2 need to be added under the law.

3 Q. Who is this CRS Software made by?

4 A. CRS Software? They are a company.

5 Q. That is the name of the company?

6 A. Yes.

7 Q. Isn't that a widely used collection software?

8 A. I don't know who their customer base is. I

9 know that when I was reviewing it, they were used by a

10 large number of people who don't necessarily collect on

11 bad checks but collect on other types of debts.

12 Q. What safeguards do you have to make sure that,

13 for instance, a letter is sent out on the account, which

14 is Exhibit G, only includes the 243 plus the 25, or the

15 20, as the case may be?

16 A. I think I have answered that question. Are

17 you asking any additional safeguards other than the ones

18 I have identified?

19 Q. Yes.

20 A. None that I can recall, none that I thought

21 was necessary at the time.

22 Q. Do you know what the statute of limitations on

23 bounced checks is in Connecticut?

24 A. I believe it is six years under contract law,

25 and I also believe that it is not a bar to either a


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1 collection effort or litigation.

2 Q. Do you know what the criminal statute of

3 limitations on a bounced check is?

4 A. I believe an untold statute of limitations

5 is -- I believe it is two years over a certain sum. I

6 don't remember the exact statute.

7 Q. Who is James Carty?

8 A. I don't know who that is.

9 (Plaintiff's Exhibit N: Marked for


11 Q. Would you look at Exhibit N, please, and tell

12 me what that is?

13 A. It is a letter directed to the plaintiff,

14 dated November 26, 2001, from JBC & Associates, PC.

15 Q. Down at the bottom left-hand corner, there is

16 a code. Can you tell me what that code might be?

17 A. No, I don't know what that code is.

18 Q. Looks like a printer code to me. Up at the

19 top, above my client's name, there is a series of

20 numbers. What do those mean?

21 A. The first six digits, I believe, is the master

22 account number, which is the file number. And I have no

23 idea what the other numbers mean.

24 Q. "- 3," would that indicate a third letter?

25 A. No, but this could be a third letter. It


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1 could be a fourth letter. It is certainly not the first

2 letter.

3 Q. How did the balance on the Wilson Suede &

4 Leather account get to $1,971.80?

5 A. Well, this is a letter that is unlike the

6 first letter, which has the details of more than one

7 check. This letter is master-driven, which means it

8 picks up the first client name on the first debt. So in

9 this case, I believe the first debt on the system for

10 this particular master number was the one written to

11 Wilson Suede & Leather for $243.79, dated January 29th,

12 1996, Check Number 297.

13 The amount represents four checks at the time

14 that was on this account, on this master account, before

15 the consolidation that happened in June of '02. And I

16 have already identified, besides the two that you have

17 identified, as counsel for plaintiff in various summary

18 motions and other documents you have presented to the

19 court, that there were two other checks; namely, one,

20 the check numbers that I gave, and those amounts, the

21 face amounts, was 178.95 and 354.17. That is 17 cents,

22 and I believe that that 1,971.80, if you do the

23 calculations, would be the face value of all those four

24 checks, plus a service fee of $25 per check, plus

25 damages equal to the face value of each of those checks,


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1 would total that 1,971.80.

2 Q. So your sworn statement under oath in

3 discovery that there were only two checks was false?

4 A. I think there was a -- because of the system

5 inaccuracies and incompetencies, we assumed that there

6 were two checks, and there were actually four that

7 related to this letter dated November 22nd, 2001. It

8 was not an intentional attempt to not be responsive. It

9 was just simply an error.

10 Q. Your office sent out another letter about a

11 year later, claiming that the balance was $10,000?

12 A. Right, and that is because on June 24th, we

13 discovered --

14 MR. FIANO: I am just going to state

15 something for the record right now. The letter you are

16 about to start talking about is the subject of a third

17 and separate action. I don't have -- I don't have an

18 issue with talking about that letter today, even though

19 it is the subject of a separate action, but then at the

20 same time, I also don't expect that Mr. Boyajian's

21 deposition is going to be noticed in that action, to

22 start talking about that letter again, if we are going

23 to get into it today, I guess is what I am saying.

24 MS. FAULKNER: Well, your expectation is

25 wrong because I expected to have all the discovery


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1 before this deposition. So obviously, Mr. Boyajian

2 isn't prepared on this letter or the subsequent letter.

3 We will have another deposition.

4 MR. FIANO: As I said, I am more than open

5 to talking about this letter today, just as we haven't

6 seen a copy of this third letter as well. But at the

7 same time, then I would anticipate that he is not going

8 to have to be subject to another deposition when we are

9 going to talk about this third letter again.

10 I mean, I would assume if we are going to talk

11 about it or we are going to have testimony with respect

12 to this third letter, then we will do it at one time and

13 in one deposition. And if that is not going to be

14 today, then I would just as much say that with respect

15 to a line of questioning with respect to this letter, it

16 is part of its own action.

17 MS. FAULKNER: What was my question?

18 (Question read.)

19 BY MS. FAULKNER:

20 Q. How was the 10,000-dollar figure calculated?

21 A. You want to show me the letter? I don't know

22 what letter you are speaking about. Are we going to

23 hypothesize that we had sent a letter or did we send the

24 letter?

25 Q. If your office sent a letter a year later


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1 which demanded $10,000, was that a mistake?

2 A. So once again --


4 A. -- we are going to presume that my office did

5 send the letter.

6 MR. FIANO: I object to the form. I don't

7 want you to presume anything. If there is a question,

8 then you can answer it. I don't want you to presume

9 anything as a basis of an answer.

10 A. The only answer I could provide you is that I

11 don't have the relevant information here, but when I see

12 consolidation of 23 checks -- I'm sorry, 21 checks in

13 addition to the four that existed as of November of '01,

14 for a total of 25 checks, that your client obviously

15 wrote to these various retailers, then the letter, if

16 there was a letter, would probably have been the sum of

17 all of those checks, plus service charges, plus

18 statutory fees. And it would have calculated to the

19 10,000-dollar number that you have proposed that I

20 assume happened.

21 Q. You said my client obviously wrote these

22 checks. Have you seen the checks?

23 A. No, but I have enough information available to

24 me given to us from your -- from the retailers that were

25 harmed by your client's actions and gave product and/or


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1 services to your client in good faith, assuming that

2 they were receiving medium exchange that was negotiable,

3 your client obviously intended to defraud my clients.

4 And my clients gave me enough information, according to

5 my belief, as an attorney, that I reviewed the

6 information, and I believe your clients wrote these

7 checks.

8 Q. What information did you base that on, if you

9 didn't see the checks?

10 A. My clients' information that is sent to me

11 electronically has consistently been correct when I have

12 had the opportunity or the need to have a check given to

13 me. It has consistently every single time reflected the

14 accurate name, address, information, and driver's

15 license numbers. And therefore, if I receive that

16 information electronically, I have no reason to believe

17 that they are incorrect, and if it is the same

18 individual, living in the same location, with the same

19 driver's license number, I am going to have a good faith

20 belief that your client was the writer of these checks.

21 And if you see the letter that you presented to me to

22 review, which is marked as Plaintiff Exhibit N --

23 Q. N?

24 A. "N," as in Nancy, it clearly asks whether or

25 not this may have been an identity theft and requests


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1 A. I don't know.

2 Q. Does that reflect a phone call?

3 A. It reflects that there was a phone call, yes.

4 Q. And we are looking at Exhibit G, for 1,126.01?

5 A. Yes.

6 Q. Now, you said the Wilson Suede & Leather is

7 probably the first account. How do you know that?

8 A. Because typically, I know when the facts

9 sheets, as they were previously printed, the first

10 record that appears, the first check that appears on the

11 first record -- well, you know what? I don't know. I

12 don't know, just it is generally my assumption that the

13 first check that appears on the first fact sheet printed

14 is usually the first -- the details of the first step.

15 Q. Which is the first fact sheet printed here?

16 A. Appears to be Exhibit G.

17 Q. When JBC sent this November, 2001 letter, was

18 it aware of the date the check or checks were supposedly

19 issued?

20 A. I am suspecting that we did, yes.

21 Q. Is [Consumer's] driver's license reflected

22 anywhere on Exhibit G?

23 A. No, but I wouldn't expect that it would be.

24 Exhibit G typically does not print a driver's license

25 detail.


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1 A. Yes. I am not sure about in fact in

2 Connecticut, but yes, we do, and we have.

3 Q. When was the last time you did that?

4 A. Could have been by someone in my organization

5 as recently as yesterday or today. It is one form of

6 identification, internal and external. It is one way

7 that we consolidate accounts. It is also one way that

8 we can locate an individual if they choose not to be

9 located.

10 Q. Do you do that by contacting the driver's

11 licensing authority in each state?

12 A. Depends on each state.

13 Q. Do you do it --

14 A. Some states provide that as part of their --

15 as part of the service that they provide as a data form

16 to entities that then re-compile it, and we buy from

17 that service. There are other states where the driver's

18 license number is actually the same as the Social

19 Security number, and we use that.

20 Q. So it would have nothing to do with the

21 driver's license number, as far as --

22 A. No. It is the driver's license number that

23 you are able to equate to a license -- to an SS number.

24 Q. When the driver's license is the same as the

25 SS number, you would not need to contact the motor


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1 A. No. I think the request is to call in so that

2 we can confirm the license, but we don't necessarily

3 place the license number on the check -- on the letter.

4 Q. And once again, I think I have asked in

5 discovery and I asked Mr. Brandon, is there a driver's

6 license number associated with this check?

7 A. I think it is. Isn't it provided for you?

8 Q. Exhibit G?

9 A. No. How about Exhibit F?

10 Q. That is the driver's license number?

11 A. The CT 212, yes.

12 Q. It is the only driver's license number that

13 you had?

14 A. For those checks, yes, apparently. I can try

15 to confirm that, but I see no reason why it is wrong.

16 Is that your client's driver's license number?

17 Q. Is this an effort to collect a debt?

18 A. You are saying we didn't give you one, and we

19 did.

20 Q. Now, your second to the last sentence says,

21 "We reserve the right to use any and all information we

22 have obtained in further civil or criminal proceedings."

23 What criminal proceedings has JBC initiated in

24 Connecticut?

25 A. Well, it doesn't have to be Connecticut only.


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1 This letter is a letter that is sent to more than just

2 Connecticut, and if in fact this letter went to someone

3 who bounced a check, for example, on JBC, which

4 sometimes that occurs, and quite often it occurs, we

5 proceed with criminal action. And we have brought

6 criminal action against Connecticut residents in

7 New Jersey, and we have summoned them into court. So

8 yes, we do bring criminal action against Connecticut

9 residents.

10 MS. FAULKNER: We are not going to finish

11 in 10 minutes.

12 (Lunch Recess: 1:00 to 1:40 p.m.)

13 Q. We were talking about Exhibit N, the letter of

14 November 22, 2001.

15 A. Yes.

16 Q. At the date of this letter -- I think you said

17 you knew the checks had been issued in '96, was it?

18 A. Yes.

19 Q. So was there any ability at that point to use

20 the old checks in some criminal proceedings?

21 A. Well, that I believe requires a conclusion

22 that I am not prepared to make. I think it is a matter

23 of interpretation and law, but I believe that what we

24 are reserving here was just simply the right to use the

25 information in civil or criminal proceedings, so I think


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1 your question is related to specifically the dates of

2 those checks and whether or not they would be subject to

3 civil or criminal proceedings. But what we were simply

4 doing is they are reserving the right to do so.

5 Q. But you didn't have a right to reserve at that

6 point as far as criminal proceedings; isn't that

7 correct?

8 A. I am not sure about that. I think that is a

9 conclusion of law that neither one of us can really

10 rightfully make. If your client wrote another bad check

11 in that interim period of time, I think that would

12 definitely be relevant.

13 Q. To what?

14 A. Whatever. I mean, I have a theory of law that

15 may not be yours, and that may -- I am not necessarily

16 prepared to tell you, but I think there is no question

17 that there would be a basis for using her pattern of

18 writing bad checks, and many of them, not just a few.

19 Q. These were all NSF checks, as far as you know?

20 A. I don't know what you mean by "NSF." They are

21 non-sufficient funds versus stop payments?

22 Q. Right.

23 A. I believe they are all insufficient funds,

24 reasons for returns.

25 Q. Is there something on Exhibit G that would


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1 tell you that?

2 A. Not in this particular exhibit, but if the

3 client identified -- normally our clients identify stop

4 payment as differently than an account closed or a

5 non-sufficient fund issue. We take note of those, and

6 we handle them differently.

7 Q. So these are handled as though they were NS,

8 non-sufficient funds checks?

9 A. Or account closed.

10 Q. Or account closed, and how can you tell

11 whether there was an account closed?

12 A. Well, if the client does not advise us to stop

13 payment, then we assume that it is either/or, and we

14 treat them the same.

15 Q. The first line of the Exhibit N, you say that

16 my client has refused an offer to voluntarily make

17 restitution. When did that occur?

18 A. Well, this would be a third or fourth letter.

19 The first two letters that we provided in the responsive

20 pleadings are letters that -- or some version of those

21 letters would have gone to your client prior to this

22 letter being sent. And the notation on our system shows

23 that she outright refused -- in speaking to 618, as

24 reflected in Exhibit G, she outright refused to make

25 payment.


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1 Q. Where on Exhibit G does it show that any prior

2 letter or communication was made with my client?

3 A. That would be in the GWA system, not in this

4 system.

5 Q. And once again, you haven't provided me with a

6 GWA system?

7 A. That is because we don't have it. I am pretty

8 confident that those -- some were retained, and if it

9 was retained, we would have provided it to you, but I

10 will double-check on that. That server was -- once the

11 information was transferred, the server was no longer

12 maintained.

13 Q. If you will look at Exhibit E for a moment,

14 the status closed is a 42 instead of a 49. Does that

15 make any difference?

16 A. E 2?

17 Q. Exhibit E?

18 A. Exhibit E?

19 Q. Status is 42.

20 A. Well, I think this was subsequent to an

21 inadvertent consolidation that occurred on this account,

22 and I guess when it was closed a second time, because it

23 reopened itself. And we closed it a second time to 42

24 instead of 49. The first time it was closed to 49 by

25 Marv Brandon upon, I believe, either the first action


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1 being initiated or notification that the debtor was

2 represented by counsel.

3 Q. These are two different accounts, so --

4 A. No, they are not.

5 Q. E is Marshall's and G is Wilson Suede?

6 A. Well, I think what that is -- see, that is why

7 I am saying that the fact sheets are so inconsistent and

8 so unreliable. The CRS number is the same. You notice

9 that?

10 Q. Right.

11 A. Okay. What occurred -- and you will see the

12 notes are almost the same.

13 Q. Right.

14 A. Okay. What happens is that the notes for G go

15 to June 24th of '02, whereas the notes for E follow

16 through from October through March of '03. And I can

17 tell that an account was inappropriately merged to a

18 closed file, which is a problem we identified related

19 to, actually, a case that you brought with the same

20 plaintiff, because our assumption was that CRS work,

21 like GWA, if you closed an account, it wouldn't

22 consolidate to that account.

23 It did here, and the reason I know is that

24 that there is a strategy, one level three, which is part

25 of a first notation, as part of a new file that comes


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1 in, not necessarily the first notation, but a file that

2 comes in. And so obviously, this account was reopened

3 by the system, a letter was sent out, and then it was

4 ultimately closed again to 42.

5 Q. You are talking about Exhibit E, here?

6 A. That's correct.

7 Q. And why don't you tell me whether your

8 initials appear on page 3 of Exhibit E?

9 A. If I review an account, I don't -- my system

10 doesn't mark it. If I do something to the account, it

11 does. I don't believe any of my initials or any of my

12 activities are notated here.

13 Q. Towards the bottom, it talks about "SN/2."

14 Isn't that a code for a letter being sent?

15 A. It typically is. I just don't know what "-CV"

16 means, because that is not an initial of mine, although

17 it could be that it just inappropriately put it in

18 there. It wouldn't be the first time I have seen an

19 error on the ID. But that could be mine.

20 Q. And then for 2/19/03, that is yours, "SYS;" is

21 that correct?

22 A. Yes. I missed that, yes. Where is the

23 notation? "SYS," yes.

24 Q. So on Exhibit E, still on Exhibit E, tell me

25 what happened after 6/24/02, the last DMP.


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1 A. It appears an account came in because it was

2 transferred out of 345, which is a collection unit that

3 typically brings the new accounts in, and it was

4 assigned to an Associate, 235. And the "CCs" are

5 basically no action is being done. It is like a default

6 code, which I don't know why they appear, but no contact

7 is made.

8 Then for some reason, the account was moved

9 around, was taken out of 235, then taken out of 559 and

10 taken out of 349 on January 14th. That is -- transfer

11 account is the symbol, and the numbers that go past that

12 is the number it was in and it was taken out of. So

13 "TR" is "telephone residence," and "OP," I believe, is

14 "operator intercept" or something like that, which means

15 no contact was made. And a wrong number was identified

16 as a wrong number, and that is what that telephone

17 residence, "WN" means. And that was the number that was

18 attempted to be doc'd, so when you put a wrong number,

19 that puts in the number that was wrong, and then it put

20 "000" on the top on the first page.

21 Then I sent notice, and I don't know -- it

22 appears three times, but one letter is sent out.

23 Sometimes what will happen is the system will generate

24 it, but then because of some error system processing it,

25 it kills it. And then you regenerate it, and it just


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1 puts another notice on all within roughly the same 24

2 hours.

3 I don't remember what "DTGI" is, and then a

4 similar "no activity" is recorded. And then the account

5 is -- the "CS" means "change status" from 11 to 42.

6 Q. Does the "DLR" in the right-hand column --

7 would that indicate an automatic dialer, or don't you

8 use those?

9 A. If the dialer does not make contact, it puts

10 "DLR," but if it transfers the call, it will put in the

11 person who the call was transferred to.

12 Q. So on January 21, it was transferred to

13 Associate 624?

14 A. Well, no. Actually, I would say that that

15 occurred on the 14th, because it was in 349, and 624

16 would be the last person -- well, no, hold on. Let me

17 see. This account is in collection unit -- okay, it is

18 in 999 now. It could have been sent to 999, and it was

19 Collection Unit 999, but it was 624 that actually took a

20 call or made the call.

21 Q. When Wilson or CVS sent this account to JBC,

22 did they also send any documentation at all, physical

23 pieces of paper?

24 A. Generally, Melville does not send us physical

25 checks. Some clients do. Others don't. Typically,


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1 Melville sends us electronic information, capturing all

2 the relevant data that is on the checks. And if we need

3 to, we will ask for the checks, and sometimes they can't

4 retrieve it.

5 It is a large organization, and depending on

6 where it is located or what their circumstances are,

7 they may or may not be able to recover the check. It is

8 unusual, but they can't locate the checks. But it

9 happens sometimes.

10 Q. And it happened in this case that they could

11 not locate the checks?

12 A. My understanding is in the first two cases

13 that is the case, but I don't think in the third it is.

14 I think the third case, there is -- if we haven't made

15 the request, we probably can get that because this is a

16 more recent transaction and not -- I don't believe it is

17 from Melville.

18 Q. Do you know whether the creditor has sent

19 anything to the check writer before they send it to JBC?

20 A. Their representation is that they do. I know

21 for a fact that Melville did. They had a large

22 collection environment of their own, and then they used

23 a third party collection agency, and before they sent it

24 to us. Is that your question?

25 Q. Yes, but I didn't understand the answer.


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1 A. I said in the case of Melville, which in the

2 case of your particular complaint in this case, is

3 Melville because it is Wilson, I am confident that they

4 did communicate with the debtor by way of a letter

5 and/or a phone call.

6 Q. Then you said something about third party

7 collections, and I didn't understand that.

8 A. Right. Before they send it to us, my

9 knowledge of Melville is they use a first placement

10 agency.

11 Q. So Melville used a collection agency before it

12 used you?

13 A. I believe so, yes.

14 Q. Do you know who that was?

15 A. No. They varied. I have no idea what it was

16 at that time, who it would have been.

17 Q. Do you know if it was Capital Recovery, CRS?

18 A. Could have been.

19 Q. So is there a way you can tell from Exhibit G

20 that this is a secondary?

21 A. No. I do know that if it is coming from

22 Melville, it is secondary.

23 Q. Always a secondary when it comes from

24 Melville?

25 A. Yes.


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1 Q. Someone else has worked it?

2 A. Yes.

3 Q. If you will look at Exhibit C --

4 A. Yes.

5 Q. -- that letter does not contain any reference

6 to civil or criminal proceedings; is that correct? No,

7 it doesn't contain any reference to criminal

8 proceedings; isn't that correct?

9 A. Apparently not.

10 Q. And Exhibit B, likewise, does not contain any

11 reference to criminal proceedings; is that correct?

12 A. Apparently, no.

13 Q. So at some point between November 22, 2001,

14 and September 23, 2002, did JBC decide to drop the

15 reference to criminal proceedings?

16 A. These are two different letters. This is a

17 different letter than this one.

18 Q. Yes, I understand that.

19 A. Why would you assume that it was in here at

20 one time and now it is not? You are making the

21 assumption that Letter C and/or Letter B at one time had

22 criminal proceedings.

23 Q. No.

24 A. Well then, I didn't understand your question.

25 Q. I am saying that Letter N has it in --


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1 A. Right.

2 Q. But Letter B and C do not have any reference

3 to criminal proceedings?

4 A. Because they are not relevant. We are

5 reserving our rights in B or C as we were Letter N.

6 Q. Why would you reserve such a right in Letter N

7 and not in B and C if that was available?

8 A. Last answer. We do identify in both Letters A

9 and B that -- I'm sorry, Letters -- I think Letters B

10 and C do refer to some proceedings that might be

11 available as remedies to our client, particularly where

12 it clearly says our clients may now assume and we may

13 proceed with allowable remedies. So remedies are

14 identified, but not in those words. So these are two

15 different -- these are three different letters, so there

16 is no reason to believe that anything changed between

17 those time periods.

18 Q. So you think there is probably a third letter

19 that goes into Connecticut that has the criminal

20 proceedings in it still?

21 A. You mean similar to Letter N?

22 Q. Yes.

23 A. At this current time?

24 Q. As of September 23, as of the same date as B

25 and C?


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1 A. It could have been.

2 Q. What about as of this particular time?

3 A. It could be. I don't know for sure. I am

4 not -- I don't memorize the content of every letter in

5 our system.

6 Q. JBC has been through this many times around

7 the country; is that correct?

8 A. That is a vague and arbitrary statement. I

9 don't know what "many" means.

10 Q. Well, let us say 30?

11 A. Well, I am not sure that that is true, but if

12 you say it is, then I will accept that, if you have some

13 information that would determine that.

14 Q. Do you get personally involved with each of

15 the lawsuits that are brought against JBC in responding

16 to pleadings and discovery and so forth?

17 A. In some cases.

18 Q. Aren't most of the lawsuits that have been

19 brought against JBC based on excessive bounced checks

20 fees?

21 A. No.

22 Q. What are they based on?

23 A. Well, they speak for themselves, and they are

24 certainly part of the public domain, so I am sure that

25 they could be -- if it is relevant, those things can be


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1 A. She is one of our attorneys that works in our

2 office.

3 Q. She hasn't talked to you about the Johnson

4 case?


6 Q. How about Ecklund?

7 A. I am not familiar with the case.

8 Q. How about Williams?

9 A. I am not familiar with the case. I don't

10 remember.

11 Q. Still?

12 A. Still is a New Jersey case, I believe.

13 Q. Right.

14 A. And I am involved in that.

15 Q. And what is the claim in Still?

16 A. That is, obviously, available to you to review

17 as a part of your pleadings. I still don't see the

18 relevance of it.

19 Q. Was part of the claim excessive check fees?

20 A. Actually, it is not an excessive check fee

21 issue as much as it is an argument about what the

22 service fee should reasonably be under the Uniform

23 Commercial Code of New Jersey.

24 Q. And what about Debski?

25 A. I don't know him.


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1 A. I think that has long been settled.

2 Q. Did that involve excessive check fees?

3 A. Absolutely not. Sterling is -- that was not a

4 check client. Sterling was a voluntary extension of

5 credit.

6 Q. Anselm?

7 A. Which one?

8 Q. Oregon. Anselm?

9 A. That was long, long resolved, and that had

10 nothing to do with excessive check fees.

11 Q. Cardriche, C-A-R-D-R-I-C-H-E?

12 A. Against PC?

13 Q. No, you are right, against Inc.?

14 A. I don't remember any of the details of that

15 case.

16 Q. If you remembered it was Inc. instead of PC,

17 that is quite a memory.

18 A. I just don't remember the details of what that

19 case was about.

20 Q. Did that involve a check fee?

21 A. What jurisdiction was that?

22 Q. It looks like Louisiana again.

23 A. I don't remember. I don't remember.

24 Q. Ferch, F-E-R-C-H, Wisconsin?

25 A. Is that an Illinois case?


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1 Q. Wisconsin?

2 A. A Wisconsin case? No, I think that was a

3 statute of limitations issue.

4 Q. Dinino?

5 A. I don't know enough about that. I don't know

6 that name. It doesn't ring a bell.

7 Q. It was just filed December 31st, so maybe you

8 haven't been served yet.

9 A. It is possible. What jurisdiction is that?

10 Q. Kansas.

11 A. Oh, yes, we were served. It is a statute of

12 limitations issue.

13 Q. Metz, M-E-T-Z?

14 A. What jurisdiction?

15 Q. Looks like Indiana.

16 A. That has been resolved.

17 Q. Right, but did it involve excessive check

18 fees?

19 A. No, I don't believe it did.

20 Q. Defenvaugh, D-E-F-E-N-V-A-U-G-H?

21 A. Right. That is a current California class

22 action that has been resolved as a bona fide error.

23 Q. Did that involve check fees?

24 A. Absolutely not.

25 Q. Gregory?


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2 Q. Looks like Indiana again.

3 A. I don't remember what the nature of that case

4 is.

5 Q. Goodwin?


7 Q. Looks like Missouri, MO?

8 A. I think that is a consolidated case with

9 Gregory, and it is all in the same jurisdiction, and it

10 relates to statutory issues.

11 Q. You mean statutory, like check statutory

12 issues?

13 A. No, no, statute of limitations. I'm sorry.

14 Q. Wheeler, Virginia?

15 A. That has been resolved, and it had nothing to

16 do with any kind of excessive fee, but a communication

17 issue.

18 Q. Rose?

19 A. I don't know that one.

20 Q. That is in Illinois?

21 A. Doesn't ring a bell.

22 Q. Burch, B-U-R-C-H?


24 Q. Pennsylvania?

25 A. Is that recent?


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1 Q. Just closed in January 15th of 2004.

2 A. As a settled case?

3 Q. Presumably. I don't know.

4 A. No. Pennsylvania has no statutory fees, and

5 therefore, there is no excessive fee claim in

6 Pennsylvania. I don't recall what that was, but it was

7 not a fee issue.

8 Q. Elliott?


10 Q. Illinois?

11 A. Still open?

12 Q. Still open?

13 A. That may be part of the -- part of the class

14 action that is in Illinois. Do you have plaintiff

15 counsel on that sheet?

16 Q. No.

17 A. Okay. I don't know what that is.

18 Q. Thomas?

19 A. Jurisdiction?

20 Q. Pennsylvania.

21 A. Still open?

22 Q. Just filed.

23 A. Just filed?

24 Q. December 19th.

25 A. Don't know enough about it. I don't know


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1 anything about it. I don't know what the cause of the

2 action is.

3 Q. Ingraham?

4 A. Don't know anything about it.

5 Q. Filed January 8, 2004?

6 A. Probably not even served.

7 Q. Morgan?

8 A. Don't know anything about it. When was it

9 filed?

10 Q. October of 2003.


12 Q. Indiana.

13 A. That is part of that -- there is a four-state

14 class action that is now in Northern Illinois District.

15 Q. Does that involve the check fees?

16 A. It is the statute of limitation issue.

17 Q. Statute of limitation, okay.

18 MS. FAULKNER: I think that is all. Thank

19 you very much.

20 MR. FIANO: Thank you. No questions.

21 (Deposition concluded: 2:15 p.m.)

22

23

24

25


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1

2

3 JACK H. BOYAJIAN

4 SUBSCRIBED AND SWORN TO BEFORE ME, the

5 undersigned authority, on this the day of

6 , 19 .

7

8

9 NOTARY PUBLIC

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


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3.3 Excessive Charges and False Threats, Motion for Partial Summary

Judgment

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

[CONSUMER],Plaintiff,

v.

JBC & ASSOCIATES, P.C.JACK H. BOYAJIANMARVIN BRANDON,

Defendants.

Case No.

December 15, 2003

PLAINTIFF’S MEMORANDUM IN SUPPORT OF SUMMARY JUDGMENT

Plaintiff sued under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §1692e,-f, and -g, and the Connecticut Unfair Trade Practices Act (CUTPA). Plaintiff seeks statutorydamages, punitive damages, attorney’s fees and costs. Summary judgment is appropriate,because whether the defendants’ collection letter at issue violated the FDCPA is a question of

law for the Court under the “least sophisticated consumer” standard. Schweizer v. Trans UnionCorp., 136 F.3d 233, 237-38 (2d Cir. 1998), citing Russell v. Equifax A.R.S., 74 F.3d 30, 33 (2dCir. 1996) and Bentley v. Great Lakes Collection Bureau, 6 F.3d 60, 62-63 (2d Cir. 1993).

Plaintiff meets the essential three requirements to establish an FDCPA violation: (1) theplaintiff is the consumer who allegedly owes the debt or a person who has been the object of efforts to collect a consumer debt, (2) the defendant collecting the “debt” is a “debt collector” asdefined, and (3) the defendant has engaged in any act or omission in violation of the prohibitionsor requirements of the law. Kolker v. Duke City Collection Agency, 750 F. Supp. 468, 469(D.N.M. 1990); Riveria v. MAB Collections, Inc., 682 F. Supp. 174, 175-76 (W.D.N.Y. 1988);Withers v. Eveland , 988 F. Supp. 942, 945 (E.D. Va. 1997); Whatley v. Universal Collection

Bureau, Inc., 525 F. Supp. 1204, 1206 (N.D.Ga. 1981).

I. PLAINTIFF IS A CONSUMER

In response to the Complaint, defendants admitted that plaintiff is a consumer.

II. DEFENDANTS ARE DEBT COLLECTORS

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Defendants admitted that JBC and Brandon are debt collectors. Based on defendantBrandon’s deposition, defendant Boyajian is the principal of JBC, drafted and reviewed the lettersent to plaintiff, and makes the significant collection decisions including the letters to be sent, theamount to be demanded, and whether to pursue civil or criminal consequences.

A “debt collector” is “any person who uses an instrumentality of interstate commerce or

the mails in any business the principal purpose of which is the collection of any debts, or whoregularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to beowed or due another.” 15 U.S.C. § 1692a(6). Boyajian is a debt collector under either test.

III. PRINCIPLES OF CONSTRUCTION

1. The FDCPA is a strict liability statute. Proof of only one violation is sufficient tosupport judgment for plaintiff. Bentley v. Great Lakes Collection Bureau, Inc., 6 F.3d 60 (2dCir. 1993).

2. The FDCPA is liberally construed in favor of the consumer to effectuate its purposes.Cirkot v. Diversified Financial Systems, Inc., 839 F. Supp. 941, 944 (D. Conn. 1993).

3. The focus of the FDCPA is on the conduct of the debt collector, not on the conduct of the consumer. Keele v. Wexler , 149 F.3d 589, 594 (7th Cir. 1998).4. “At the outset, it should be emphasized that the use of any false, deceptive, or

misleading representation in a collection letter violates § 1692e regardless of whether therepresentation in question violates a particular subsection of that provision.” Clomon v. Jackson,988 F.2d 1314, 1320 (2d Cir. 1993).

5. The standard used to determine whether something is deceptive or misleading iswhether the “least sophisticated consumer” could have been deceived or misled. Clomon, 988F.2d at 1318. The “least sophisticated consumer” is a naive, credulous, gullible, ignorant,unthinking, person of “below-average sophistication or intelligence” “with a rudimentaryamount of information about the world and a willingness to read a collection notice with somecare.” Id .

6. A letter is deceptive or misleading if it is subject to an inaccurate yet reasonableinterpretation by the least sophisticated consumer. Russell v. Equifax A.R.S., 74 F.3d 30, 36 (2dCir. 1996)

7. Whether a letter is deceptive or misleading from the perspective of the leastsophisticated consumer is ordinarily a question of law for the Court, where a defendant has notconceded liability. Schweizer v. Trans Union Corp., 136 F.3d 233, 237 38 (2d Cir. 1998), citing Russell v. Equifax A.R.S., 74 F.3d 30, 33 (2d Cir. 1996) and Bentley v. Great Lakes Collection

Bureau, 6 F.3d 60, 62 63 (2d Cir. 1993).8. The FDCPA prohibits collection practices that violate other state or federal laws. Picht

v. Jon R. Hawks, Ltd., 236 F.3d 446, 448 (8th Cir. 2001); Gaetano v. Payco, 774 F. Supp. 1404,1414 15 (D. Conn. 1990).

IV. ATTEMPTING TO COLLECT A MULTIPLE OF ANY AMOUNT WAS

UNLAWFUL

Defendants were collecting on alleged January 1996 debts totaling $402.78. TheirNovember 2001 demand letter sought payment of $1971.80: “Unless we receive immediatepayment of $1971.80 or sufficient documentation that relieves you of this obligation, we reserve

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the right to use any and all information we have obtained in further civil or criminalproceedings.” The amount demanded was over four times the amount of the alleged debt. Thecreditor could have added $20 to the amount of each check (unless certain exceptions applied).Conn. Gen. Stat. §52-565a(i). A creditor who jumped through the statutory hoops might beawarded additional damages “to be determined by the court” up to the face amount of the checks.

§ 52-565a (a)-(h). Since the creditor did not go to court to seek additional damages, andassuming none of the exceptions applied, the maximum amount of the underlying debt was$440.78 (adding $20 for each check). Assuming interest could accrue at 8% (Conn. Gen. Stat.§37-1(a)), only $211.57 could be added to the $440.78. Plainly, the balance on any Wilson Suede& Leather debt could not be anywhere near the $1971.80 figure demanded under threat of criminal or civil proceedings.

The FDCPA prohibits both misrepresenting the amount of the debt (§1692e) and theattempt to collect any amount not allowed by law (§1692f(1)). Defendants violated the FDCPAby seeking a large multiple of any possible underlying debt. Duffy v. Landberg, 215 F.3d 871(8th Cir 2000); Kojetin v. CU Recovery, Inc., 212 F.3d 1318 (8th Cir. 2000) (per curiam); Picht

v. Jon R. Hawks, Ltd ., 236 F.3d 446 (8th Cir. 2001).

V. MENTION OF CRIMINAL PROCEEDINGS WAS UNLAWFUL

Defendants were collecting on alleged January 1996 debts totaling $402.78. Theirdemand letter sought payment of $1971.80: “Unless we receive immediate payment of $1971.80or sufficient documentation that relieves you of this obligation, we reserve the right to use anyand all information we have obtained in further civil or criminal proceedings.” Brandon admittedthat mention of criminal proceeding should not be in JBC’s letters because it may be unlawful.15 U.S.C. § 1692e generally prohibits false, deceptive or misleading representations. Subsection(2) prohibits the false representation of the legal status of the debt. Subsection (4) prohibits the“representation or implication” that nonpayment “will result in the arrest or imprisonment”unless the action is lawful and the debt collector intends to take such action. Subsection (5)prohibits the threat to take any action that cannot be legally taken, or that is not intended to betaken.

The two alleged checks at issue were supposedly written in 1996 for amounts of less than$250.00. At best, any criminal violation would be a Class C misdemeanor. Conn. Gen. Stat.§53a-128(c). The time for criminal proceedings on any such checks expired one year after theywere written. Conn. Gen. Stat. §54-193(b). Mention of an unavailable criminal proceeding is oneof the seriously unlawful collection tactics which the FDCPA was enacted to prevent.

VI. MENTION OF CIVIL PROCEEDINGS WAS UNLAWFUL

Defendants’ letter mentioned the use of “further civil or criminal proceedings.” Nocriminal proceedings were possible. No civil proceedings were intended, according to Mr.Brandon at his deposition. The letter was sent only two months before the longest possiblestatute of limitations expired (six year contract statute). No defendant could bring suit. Brandonand Boyajian were not admitted to practice in Connecticut. Only Wilson could bring suit.Defendants did not even have copies of the checks to sue upon.

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A deceptive threat of civil action is a classic, well-known violation of the FDCPA. E.g. Pipiles v. Credit Bureau, Inc., 886 F.2d 22, 25-26 (2d Cir. 1989); Bentley v. Great Lakes

Collection Bureau, 6 F.3d 60, 62 (2d Cir. 1993).

VI. MENTION OF MOTOR VEHICLE AUTHORIZATION WAS FALSE

Defendants’ form letter asserted, “Be advised our records reflect you may have used yourdrivers license and therefore you may have authorized our client to inquire as to your identityand location in its efforts to recover the funds due. Before your state’s motor vehicle division iscontacted regarding such information . . . .” (Emphasis added.) To the least sophisticatedconsumer, the letter could well be interpreted as a threat to her driver’s license or ability toregister a motor vehicle.

More significant is that defendants’ assertion is a serious misrepresentation of the law.Federal law since 1994 and parallel state laws severely restricted the ability to obtain informationfrom a driver’s license database. 18 U.S.C. § 2721; Conn. Gen. Stat. §14-10. Express consent of the license holder was a condition to obtaining records. §14-10(f)(2)(J); 18 U.S.C. §

2771(b)(11). Under no circumstances could the mere use of a driver’s license “authorize[] ourclient to inquire” of any state’s motor vehicle division. The statement was objectively false. Of course, since defendants already had plaintiff’s identity and location, it did not need to contactany third party. §1692b. Contact with the motor vehicle department was specifically prohibitedby the FDCPA §1692c(b) since use of a driver’s license is not “direct consent.” Therepresentation that anyone could obtain information from the motor vehicle department basedsolely on permission implied from use of a driver’s license was false.

VII. DEFENDANTS VIOLATED STATE LAW

Connecticut’s Creditors’ Collection Practices Act and Regulations parallel the FDCPA.Reg. Conn. State Agencies §36a-647-5 to 7. Connecticut’s Consumer Collections Agency Actand Regulations parallel the FDCPA. Reg. Conn. State Agencies §36a-809-3(f), (g). By violatingthese parallel state laws, defendants have violated CUTPA, Conn. Gen. Stat. §42-110b. Even if the Banking Department had not already determined by regulation that the practices were unfairor deceptive, a violation of a federal law is a per se violation of CUTPA (unfair or deceptivepractices): Dial Corp. v. Manghnani Inv. Corp., 659 F. Supp. 1230, 1238-39 (D. Conn. 1987);Chauvin Intern. Ltd. v. Goldwitz, 927 F. Supp. 40, 49 & n.22 (D. Conn. 1996); Pfizer, Inc. v.

Miles, Inc., 868 F. Supp. 437, 442 (D. Conn. 1994); Nabisco Brands, Inc. v. Kaye, 760 F. Supp.25, 29 (D. Conn. 1991); Zoological and Ecological Research Found., Inc. v. Crabtree-Haas

Imports, Inc., 7 CSCR 1144, 1145 (Oct. 19, 1992) (Katz, J.).

CONCLUSION

Plaintiff has presented four serious violations of which the individual defendants, whoseprincipal practice with JBC is debt collection, and who are admitted as lawyers in other jurisdictions, are charged with knowledge. Partial summary judgment as to liability alone shouldenter for plaintiff for these violations of the FDCPA and state law.

THE PLAINTIFF

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BY__________________________[ATTORNEY FOR PLAINTIFF]

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3.4 Excessive Charges and False Threats, Reply Memorandum for Partial

Summary Judgment




v.

JBC & ASSOCIATES, P.C.JACK H. BOYAJIANMARVIN BRANDON,

Defendants.

Case No.

March 1, 2004

PLAINTIFF’S REPLY MEMORANDUM IN SUPPORT OF SUMMARY JUDGMENT

Defendants’ Opposition (1) concedes the four violations; and (2) reveals two moreviolations. Defendants attempt to raise factual questions, but they contradict their prior swornresponses to discovery, relate to collection efforts outside the statute of limitations, or areentirely unsubstantiated by admissible evidence.

Preliminarily, whether plaintiff wrote any of the checks is irrelevant to the substance of the motion for summary judgment, and to the applicability of the FDCPA. Keele v. Wexler , 149F.3d 589, 595-96 (7th Cir. 1998) (declining to adopt a fraud exception to the FDCPA). Herpurported failure to dispute or respond to JBC also has no factual or legal significance. 15U.S.C. § § 1692g(c). Also, Plaintiff’s argument does not depend on any prior letters; they haveno bearing on the text of the letter at issue, even if their existence and contents could besubstantiated by admissible evidence other than by bald assertions of counsel. Def. Mem. at 5.

Erroneous calculation. Defendants admit that, viewing the letter as sent only on behalf of Wilson Suede, as the letter itself asserted, the amount demanded was excessive. They wereconstrained to reveal that there were two other undisclosed 1996 checks to Bob’s necessary tomake the figures add up to the amount demanded.

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Even including the two unmentioned checks, the sum demanded is unlawful.

243.79 158.99 178,95 354.17 face of 1996 checks25.00 25.00 25.00 25.00 Service fee § 52-565a(i)

243.79 158.99 178.95 354.17 statutory damages Total $1971.80

The Service Fee is limited by Connecticut statute to “up to” $20. It applies to checkswritten after the 1997 effective date of §52-565a(i). Defendant’s overcharge was at least $25 per1996 check, demanded in violation of 15 U.S.C. § §1692f(1).

More reprehensible is the defendant lawyers’ demand for statutory dishonored check damages, which “shall be in an amount to be determined by the court in light of thecircumstances, but in no even shall such amount be greater than the face amount of the check orfour hundred dollars, whichever is less.” §52-565a(c). Lawyers should know that they could notunilaterally demand any statutory penalty without having the amount first determined “by thecourt” – a provision undoubtedly enacted to prevent such oppression and significant monetaryoverreaching as these defendants engaged in. Def. Mem. at 4. Veach v Sheeks, 316 F.3d 690, 693

(7th Cir. 2003) (amount of debt misrepresented because consumer could not be liable for anyamount until determined by court); Picht v. Jon R. Hawks, Ltd., 236 F.3d 446, 448 (8th Cir.2001) (dishonored check statute requires a judicial determination of any penalty, “up to” astatutory amount); People ex rel. Daley v. Datacom Systems, 585 N.E.2d 51, 68 (Ill. 1991)(extrajudicial demand for an amount between statutory minimum and maximum penaltyunlawful); Intern. Bur. of Fraud Control v. Clayton, 544 N.E. 2d 416, 421-22 (Ill. App. 1989)(civil damages liability for NSF checks arises only after litigation).

Criminal proceedings. Defendants have not interposed any legal or factual opposition tosummary judgment on the basis of their misleading and oppressive reference to criminalproceedings. Def. Mem. at 9. The letter says, “We reserve the right to use any and allinformation we have obtained in further civil or criminal proceedings.” In Connecticut, criminalproceeding must be brought by a prosecutor within the statute of limitations. Private individuals,whether creditor or collection agency, have no power to proceed criminally. Here, the checkswere well beyond the criminal statute of limitations. Moreover, it was factually and legallyimpossible for defendants themselves to proceed criminally. They don’t even purport to have thechecks, or copies thereof, essential to any prosecution. Yet the least sophisticated consumer wasmeant to conclude that criminal proceedings by were possible. Once again, defendants offer noadmissible evidence of any ability or intent to use any information in criminal proceedings.

Since at least 1988, the mention of criminal proceedings has been known to violate theFDCPA. The Federal Trade Commission Official Staff Commentary on the Fair Debt CollectionPractices Act, 53 Fed. Reg. 50097, 60106 (Dec. 13, 1988):

Section 807(5) prohibits the “threat to take any action that cannot legally be taken or thatis not intended to be taken.”

. . .4. Threat of criminal action. A debt collector may not threaten to report a dishonoredcheck or other fact to the police, unless he actually intends to take this action.. . .6. Threat of legal or other action. Section 807(5) refers not only to a false threat of legal

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action, but also a false threat by a debt collector that he will report a debt to a creditbureau, assess a collection fee, or undertake any other action if the debt is not paid. Adebt collector may also not misrepresent the imminence of such action.A debt collector’s implication, as well as a direct statement, of planned legal action maybe an unlawful deception. For example, reference to an attorney or to legal proceedingsmay mislead the debtor as to the likelihood or imminence of legal action.

7. Illegality of threatened act. A debt collector may not threaten that he will illegallycontact an employer, or other third party, or take some other ‘‘action that cannot legallybe taken’’ (such as advising the creditor to sue where such advice would violate staterules governing the unauthorized practice of law). If state law forbids a debt collectorfrom suing in his own name (or from doing so without first obtaining a formal assignment and that has not been done), the debt collector may not represent that he will sue inthat state.

Civil Proceedings. Def. Mem. at 10. Once again, defendants have not provided anyadmissible evidence of an intent, ability, or authorization, to pursue civil proceedings. They havenot pursued civil proceedings to this date. Under the FTC Official Staff Commentary citedabove, defendants (lawyers and a law firm) have known such a threat was unlawful since at least1988. Defendants themselves could not bring civil proceedings, since they did not own theaccount and had no standing. “We” cannot reserve any “right” we do not have. Rosa v. Gaynor, 784 F. Supp. 1, 5 (D. Conn. 1989) (the only possible construction of “we” is the defendant andothers).

Motor Vehicle Information. Defendants’ Mem. at 13-14 offers only a speculativestatutory analysis without evidentiary support. The “least sophisticated consumer” is notexpected to engage in arcane analysis of what the words might mean, rather than what theyconvey. The “least sophisticated consumer” is a naive, credulous, gullible, ignorant, unthinking,person of “below-average sophistication or intelligence” “with a rudimentary amount of information about the world and a willingness to read a collection notice with some care.”Clomon v. Jackson, 988 F.2d 1314, 1318 (2d Cir. 1993). A letter is deceptive or misleading if itis subject to an inaccurate yet reasonable interpretation by the least sophisticated consumer. Russell v. Equifax A.R.S., 74 F.3d 30, 36 (2d Cir. 1996).

First newly admitted violation. The letter at issue asked that plaintiff “voluntarily makerestitution for the above referenced ‘returned’ check(s) you wrote to our client(s).” While theletter at issue names, and on its face purports to be on behalf of, only Wilson Suede, defendantsnow claim that the letter also concerned two Bob’s Stores checks. Def. Mem. at 3. They therebyadmit that the letter was deceptive since it mentioned only one creditor and did not disclosematerial information that the amount demanded was also on behalf of another entity. Omissionof a material fact is misrepresentation under common law (Restatement of Torts (Second) §§529, 551) and deception under the Federal Trade Commission Act of 1934. Ingham v. Eastern

Air Lines, Inc., 373 F.2d 227, 239 (2d Cir. 1967); Bailey Employment System, Inc. v. Hahn, 545F. Supp. 62, 67 (D. Conn. 1982), aff’d, 723 F.2d 895 (2d Cir. 1983). The least sophisticatedconsumer could not tell from the face of the letter that it also referred to checks written to anentity other than the one named. Plaintiff could not exercise her statutory right under §1692hwithout such information.

Second newly admitted violation. The letter at issue asked that plaintiff “voluntarily makerestitution for the above referenced ‘returned’ check(s) you wrote to our client(s).” However, thesum demanded was not for “restitution,” as represented. Instead, the unitemized dollar figureincluded the face amount of four checks, an illegal $25 fee for each of the checks, and the

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statutory penalty for each check , which could be imposed only by a court. The defendantsmisrepresented the “character, amount or legal status of the debt” in violation of 15 U.S.C. §§1692e(2) and affirmatively concealed that defendants were attempting to collect unauthorizedamounts. §1692f(1).

Ascertainable loss. Defendants’ Mem. at 14 confuses the concept of actual damages with

the separate statutory provision regarding ascertainable loss. Even absent actual damages,plaintiff is entitled to the injunctive and punitive relief she seeks. Under CUTPA, there is noneed to allege or prove any amount of an ascertainable loss. Hinchliffe v. American Motors

Corp., 184 Conn. 607, 612-14, 440 A.2d 810 (1981). “Whenever a consumer has receivedsomething other than what he bargained for, he has suffered a loss of money or property.” Id. at614. “Adoption of the defendants’ view, that ascertainable loss is equivalent to actual damages,would eviscerate the private remedy provided by CUTPA.” Id . at 616. “The private loss indeedmay be so small that the common law likely would reject it as grounds for relief, yet it willsupport an action under the statute.” Weigel v. Ron Tonkin Chevrolet Co., 690 P.2d 488, 494 (Or.1984) (citing Hinchliffe). Defendants’ theory that ascertainable loss necessitates a monetarypayment is untenable. Aurigemma v. Arco Petroleum Products Co., 734 F. Supp. 1025, 1028

(D. Conn. 1990) (court refuses to address “ascertainable loss” because CUTPA does “notrequire a plaintiff to prove a specific amount of actual damages to make out a prima facie case”).“Ascertainable loss” is a term of art which entitles a plaintiff to bring an action. Once an

action is brought, the plaintiff may seek actual damages, or – if there are no actual damages –equitable relief.

Section 42-110g provides:

(a) Any person who suffers any ascertainable loss of money or property, real or personal,as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action . . . to recover actual damages. . . . The court may, in itsdiscretion, award punitive damages and may provide such equitable relief as it deemsnecessary or proper.

. . . .(d) In any action brought by a person [the court may award attorney’s fees]. . . . In anyaction brought under this section, the court may, in its discretion, order, in addition todamages or in lieu of damages, injunctive or other equitable relief.

Being accused of owing a debt which one does not owe is ascertainable loss. Cox v.

Sears, Roebuck & Co., 647 A.2d 454, 464 (N.J. 1994); Sorge v. Transworld Systems, Inc., CivilNo. 3:94CV71 (JBA) (D. Conn. Sept. 19, 1996); Rizeck v. Connecticut Coast Fitness Centers

Inc., 7 Conn. Ops. 469, 471 (Apr. 30, 2001) (rejecting the need to prove actual damages). “It isenough if the consumer received something different from what had been bargained for. [citing Hinchliffe v. American Motors Corp., 184 Conn. 607, 612 (1981)]. Depriving a consumer of

information required to be provided by law, or giving a consumer deceptive or misleadinginformation causes “ascertainable loss.” Denino v. Valent i, 1993 Conn. Super. LEXIS 2686,1991 CaseBase 8193 (1993). Collecting a debt through deception or unfair means also causes“ascertainable loss.” Halloran v. Spillane’s Servicenter, Inc., 41 Conn. Supp., 587 A.2d 176, 181(1990).

Plaintiff has ascertainable loss when she got a letter that violated state and federal laws.She has a cause of action, even if she recovers only $1.00 in nominal damages. Larsen Chelsey

Realty Co. v. Larsen, 232 Conn. 480, 499 (1995). Her monetary loss, to be ascertainable, may be

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as little as a 33¢ stamp, a toll call, or gas or parking to visit an attorney. Wiginton v. Pacific

Credit Corp., 634 P.2d 111 (Hawaii 1981); Shubach v. Household Finance Corp., 376 N.E.2d140, 141 (Mass. 1979) (toll calls and travel to meet with counsel). St. Paul Fire & Marine Ins.

Co. v. Updegrave, 656 P.2d 1130, 1134 (Wash. Ct. App. 1983) (consumer’s damages “includethe consumer’s inconvenience, financial considerations such as loss of time in helping prepare

the case”).Plaintiff bases her claim for punitive damages on the fact that defendants, attorneys and alaw firm, have intentionally persisted for many years in collecting in Connecticut without acollection agency license (despite representing that they are licensed in every state); sent theunrepresented plaintiff a form letter which seriously misrepresented Connecticut law and theconsequences of writing a dishonored check; intentionally abused their status as attorneys tocreate (unfounded) fear of civil or criminal litigation in the recipients of the form letter; sent theirintimidating “attorney” form letter without so much as receiving or reviewing any check or thecreditors’ practices as a basis for forming an opinion about how to manage plaintiff’s case; androutinely imposed charges not permitted by law in their form letters. No “attorney” should beinvolved in sending such deceptive form letters to unrepresented consumers. Any lawyer familiar

with the FDCPA, as these defendants are required to be, knows that such tactics have been heldto violate the FDCPA since at least 1988. The law cannot be so interpreted as to be helpless todeter their longstanding and persistent abuses.

There are no disputed factual issues. Two principles are applicable here. First, a partycannot create an issue of fact by contradicting earlier sworn testimony. Wilson v. Westinghouse

Elec. Corp., 838 F.2d 286, 289 (8th Cir. 1988); Martin v. Merrell Dow Pharmaceuticals, Inc.,851 F.2d 703, 706 (3d Cir. 1985). As the Second Circuit said in Perma Research and Dev. Co. v.

Singer Co., 410 F.2d 572 (2d Cir. 1969), to allow a party to raise an issue of fact contradictinghis own prior testimony “would greatly diminish the utility of summary judgment as a procedurefor screening out sham issues of fact.” Id . at 578. Thus, defendant’s Rule 56 Statement denyingParagraph 13, contradicting their earlier sworn discovery response, does not create an issue of fact. The balance of Defendants’ Rule 56 Statement is not supported by either admissibletestimony or documents and is thus ineffectual to oppose summary judgment. D. Conn. LocalCiv. Rule 56(a)3.

Second, the recital of facts at Def. Mem.3-4 has no evidentiary support. Assertions inlegal memoranda are not evidence and cannot by themselves create a genuine issue of materialfact where none would otherwise exist. See Quinn v. Syracuse Model Neighborhood Corp., 613F.2d 438, 445 (2d Cir. 1980); British Airways Board v. Boeing Co., 585 F.2d 946, 952 (9th Cir.1978), cited with approval in Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir.1994). Hearsay assertions quoted in the memorandum, such as the ownership of Wilson’s andother similar remarks of Boyajian, are likewise inadmissible.

The Court is respectfully requested to disregard any unsubstantiated facts asserted in thedefendants’ memorandum; nor need it search the deposition for support since most of thedeposition pages do not appear to support the assertions in the memorandum.

CONCLUSION

Plaintiff has presented six serious violations of which the individual defendants, whoseprincipal practice with JBC is debt collection, and who are admitted as lawyers in other jurisdictions, are charged with knowledge. To quote the Seventh Circuit, “The violations of the

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Fair Debt Collection Practices Act disclosed by this record are blatant, and reflect very poorlyupon attorney Lawent’s professionalism.” Shula v. Lawent, No. 03-3194 (7th Cir. February 26,2004).

Partial summary judgment as to liability alone, including liability for punitive damages,should enter for plaintiff for these violations of the FDCPA and state law.

THE PLAINTIFF

BY__________________________[ATTORNEY FOR PLAINTIFF]

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3.5 Unlicensed Collecting, Contacting Represented Consumer, Excessive

Amount, Time Barred Debt; Motion for Partial Summary Judgment




v.

JBC & ASSOCIATES, P.C. ET AL.,Defendants.

Case No.

March 29, 2004

PLAINTIFF’S MEMORANDUM IN SUPPORT OF PARTIAL SUMMARY JUDGMENT

Plaintiff sued under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §1692e,-f, and -g, and the Connecticut Unfair Trade Practices Act (CUTPA). Plaintiff seeks statutorydamages, actual damages, punitive damages, attorney’s fees and costs. Summary judgment isappropriate, because whether the defendants’ collection letter at issue violated the FDCPA is aquestion of law for the Court under the “least sophisticated consumer” standard. Schweizer v.

Trans Union Corp., 136 F.3d 233, 237 38 (2d Cir. 1998), citing Russell v. Equifax A.R.S., 74

F.3d 30, 33 (2d Cir. 1996) and Bentley v. Great Lakes Collection Bureau, 6 F.3d 60, 62 63 (2dCir. 1993).

Plaintiff moves for summary judgment against each defendant as to liability alone on thefollowing violations which are undisputed or indisputable. The defendants violated the Fair DebtCollection Practices Act, 15 U.S.C. § 1692e and §1692f, and parallel state law in at least thefollowing respects: Defendants drafted and sent plaintiff a collection letter dated February 17,2003 (1) even though they were not licensed to collect as required by Connecticut law; (2) eventhough they knew plaintiff was represented by counsel; (3) which demanded considerably morethan any possible amount of the alleged debt; (4) which threatened to sue on a time-barred debt.

SUMMARY OF FACTS APPEARING IN LOCAL RULE 56(A)1 STATEMENT

In February 2003, defendants (two out of state lawyers and their law firm) were notlicensed in Connecticut to act as a consumer collection agency. Defendants knew that plaintiff was represented by counsel, since she had already sued them for their November 2001 letterdemanding $1,971.80 on behalf of Wilson Suede & Leather, on underlying checks totaling$402.78 (Civil No. 3:02CV 1069 (MRK)). Yet, in February 2003, defendants sent a collectionletter to plaintiff demanding some $10,000 in “restitution” for NSF checks written to WilsonSuede & Leather. Defendants’ discovery revealed that the amount represented 22 checks which

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plaintiff purportedly wrote to five separate entities over the course of five days in 1996, totaling just under $5,000.4

For years, Defendants have sent collection letters to Connecticut residents on behalf of such ubiquitous entities as Toys-R-Us, Kids-R-Us, CVS, Marshalls, Linens & Things, FootAction, Bob’s Stores, KayBee Toys, and Acme Markets. Among them, defendants had been sued

for collecting in Connecticut without a Consumer Collection Agency license seven times since1998, before this suit was filed in 2003. Defendants did not apply for a Connecticut ConsumerCollection Agency license until October 2002. No Connecticut license has yet been issued.

Defendants’ sworn Connecticut licensing application states that they do business in allfifty states. Likewise, Defendants’ web site proclaimed it is a Nationwide Legal Collection Firm.“You can be assured that every account placed will be handled professionally and within fullcompliance of all federal and state laws. Our in-house attorneys are fully responsible forensuring compliance by the staff, associates and corresponding attorneys in all fifty states.” Theweb site touted their “nationwide Check Recovery Program” which “offers its retail clients theopportunity to utilize the statutory civil penalties adopted for forty-four out of fifty states.”

Twenty-seven states, in addition to Connecticut, require that a collection agency be

licensed. Of those states, defendants are licensed in none of them. West Virginia has soughtinformation about their collection activity despite being unlicensed. In 1998, Massachusettsforbade their collection activity absent proper licensing.

Neither Mr. Brandon (a New Jersey lawyer), nor Mr. Boyajian (a California lawyer), theonly in-house attorneys at the time of this suit, have taken any responsibility to see toConnecticut licensing. In each of their depositions, they proclaimed that the other wasresponsible for the licensing.

Applicability of the FDCPA. Plaintiff meets the essential three requirements to establishan FDCPA violation: (1) the plaintiff is the consumer who allegedly owes the debt or a personwho has been the object of efforts to collect a consumer debt, (2) the defendant collecting the“debt” is a “debt collector” as defined, and (3) the defendant has engaged in any act or omissionin violation of the prohibitions or requirements of the law. Kolker v. Duke City Collection

Agency, 750 F. Supp. 468, 469 (D.N.M. 1990); Riveria v. MAB Collections, Inc., 682 F. Supp.174, 175-76 (W.D.N.Y. 1988); Withers v. Eveland , 988 F. Supp. 942, 945 (E.D. Va. 1997);Whatley v. Universal Collection Bureau, Inc., 525 F. Supp. 1204, 1206 (N.D.Ga. 1981).

1. Plaintiff is a consumer.In response to the Complaint, defendants admitted that plaintiff is a consumer.

2. Defendants are debt collectors.Defendants admitted that JBC is a debt collector. Based on defendant Brandon’s and

Boyajian’s deposition, each is a debt collector. A “debt collector” is “any person who uses aninstrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly orindirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6).Boyajian and Brandon are debt collectors under either test.

4 Although plaintiff denies writing any of the checks, whether plaintiff wrote any of the checks is irrelevant to thesubstance of the motion for summary judgment, and to the applicability of the FDCPA. Keele v. Wexler , 149 F.3d589, 595-96 (7th Cir. 1998) (declining to adopt a fraud exception to the FDCPA).

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3. Defendants have violated the FDCPA.Defendants drafted and sent plaintiff a collection letter dated February 17, 2003 (1) even

though they were not licensed to collect as required by Connecticut law; (2) even though theyknew plaintiff was represented by counsel; (3) which demanded considerably more than anypossible amount of the alleged debt; (4) which threatened to sue on a time-barred debt.

As the Third Circuit stated in Crossley v. Lieberman, 868 F.2d 566, 570 (3d Cir. 1989):

Abuses by attorney debt collectors are more egregious than those of lay collectorsbecause a consumer reacts with far more duress to an attorney’s threat of legal actionthan to a debt collection agency committing the same practice. A debt collection letter onan attorney’s letterhead conveys authority and credibility.

I. DEFENDANTS’ PERSISTENT COLLECTION OF DEBTS IN CONNECTICUT

FROM CONNECTICUT RESIDENTS ON OBLIGATIONS INCURRED IN

CONNECTICUT WITHOUT THE LICENSE REQUIRED BY THE CONNECTICUT

CONSUMER COLLECTION AGENCY ACT VIOLATES THE FDCPA

The FDCPA generally prohibits the use of “any false, deceptive, or misleadingrepresentations or means in connection with the collection of any debt.” 15 U.S.C. § §1692e.The prohibition is so significant that much of it is repeated in §1692e(10). Subsection 1692eincludes a non-exhaustive list of examples of the type of representations or means which the Actprohibits. The list includes false or deceptive “implications” as well as affirmativemisrepresentations. §1692e (1), (3), (4), (6), (7), (12), (13), (15), (16).

“At the outset, it should be emphasized that the use of any false, deceptive, or misleadingrepresentation in a collection letter violates § 1692e regardless of whether the representation inquestion violates a particular subsection of that provision.” Clomon v. Jackson, 988 F.2d 1314,1320 (2d Cir. 1993); Russell v. Equifax A.R.S., 74 F.3d 30, 33 (2d Cir. 1996); Pipiles v. Credit

Bureau of Lockport, Inc., 886 F.2d 22, 27 (2d Cir. 1989) (“Congress painted with a broad brush

in the FDCPA to protect consumers from abusive and deceptive debt collection practices, andcourts are not at liberty to excuse violations where the language of the statute clearlycomprehends them”).The FDCPA is liberally construed in favor of the consumer to effectuate itspurposes. Cirkot v. Diversified Financial Systems, Inc., 839 F. Supp. 941, 944 (D. Conn. 1993)(Cabranes, J.).

Congress, through the FDCPA, has legislatively expressed a strong public policydisfavoring dishonest, abusive, and unfair consumer debt collection practices, and clearlyintended the FDCPA to have a broad remedial scope. See S.Rep. No. 382 at 4 (1977) (“Inaddition to [the] specific prohibitions, this bill prohibits in general terms any harassing,unfair, or deceptive collection practice. This will enable the courts, where appropriate, to

proscribe other improper conduct which is not specifically addressed.”), reprinted in 1977U.S.C.C.A.N. 1695, 1698.

Hamilton v. United Health Care of Louisiana, Inc., 310 F.3d 385, 392 (5th Cir. 2002).

Case law agrees that a violation of state law is also a violation of the deceptive practicesprohibition of the FDCPA. Veach v Sheeks, 316 F.3d 690, 693 (7th Cir. 2003); Picht v. Jon R.

Hawks, Ltd ., 236 F.3d 446, 448 (8th Cir. 2001) (“The FDCPA prohibits, inter alia, the use of

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debt collection practices that violate state law”). Here, defendants violated at least §1692e(5)(“action that cannot legally be taken”); §1692e(9) (misrepresentation of document’s stateauthorization or approval), and arguably several other subsections.

A practice is deceptive if it has the tendency or capacity to deceive. FTC v. Algoma

Lumber Co., 291 U.S. 67, 81, 54 S.Ct. 315, 78 L.Ed. 655 (1934); Charles of the Ritz Distributors

Corp. v. FTC , 143 F.2d 676, 680 (2d Cir. 1944). Omission of a material fact (that the collectionagency is not licensed to collect) also constitutes misrepresentation under common law(Restatement of Torts (Second) §§ 529, 551) and deception under the Federal Trade CommissionAct of 1934. Ingham v. Eastern Air Lines, Inc., 373 F.2d 227, 239 (2d Cir. 1967); Bailey

Employment System, Inc. v. Hahn, 545 F. Supp. 62, 67 (D. Conn. 1982), aff’d, 723 F.2d 895 (2dCir. 1983). Such an omission of a material fact also leads to the type of “implication” repeatedlybarred by the FDCPA.

Federal courts, including one in this District, have held that a collection agency thatcollects local debts in the forum state without a license as required by the state violates 1692e.

Unlicensed activity is deceptive. As long ago as 1990, Judge Daly recognized thesignificant right of Connecticut debtors “to have the defendant’s qualifications as a collection

agency reviewed by state authorities.” Gaetano v. Payco of Wisconsin, Inc., 774 F. Supp. 1404,1415 n. 8 (D. Conn. 1990) (unlicensed collection activity violates §1692e of the FDCPAprohibiting deceptive practices, as well as §1692f prohibiting unfair practices). Gaetano wascited with approval in Clomon v. Jackson, 988 F.2d 1314, 1319 (2d Cir. 1993), and followed inSibley v. FirstCollect, Inc., 913 F. Supp. 469 (M.D. La. 1995); Russey v. Rankin, 911 F. Supp.1449, 1458-59 (D.N.M. 1995); Kuhn v. Account Control Technology, Inc., 865 F. Supp. 1443 (D.Nev. 1994). [It was also cited with approval by Judge Cabranes in Lindbergh v. Transworld

Systems, Inc., 846 F. Supp. 175 (D. Conn. 1994).] It is this body of law that the defendants havecontravened.

To be sure, the Ninth Circuit rejected Gaetano by fiat, with no analysis, in Wade v.

Regional Credit Ass’n, 87 F.3d 1098 (9th Cir. 1996).5 The Wade opinion, however, contains noanalysis or rationale to explain its holding and no rule or methodology that might permit anothercourt to adopt its conclusion. Wade is an anomaly where the court in any event held only that anisolated letter and call to a single debtor who owed her lawyer divorce fees, and who had movedinto a state that required licensing during the course of the collection, was not a violation of theFDCPA. This conduct would not be a violation in Connecticut either, since Connecticut’slicensing requirement applies only when an out of state collection agency collects “for creditorswho are located within this state” or “regularly collects . . . for creditors who are located outsidethis state.” Conn. Gen. Stat. §36a-801(a). Here, defendants have been collecting fromConnecticut residents for a long time, for businesses located in Connecticut.

The Second Circuit recognizes the significance of the protections of Connecticut’sConsumer Collection Agency Act, an analysis not undertaken in Wade. In Silver v. Woolf, 694F.2d 8, 12 (2d Cir. 1982), the court recognized that “[D]ebt collection practices are intimatelyrelated to the use of state courts and the regulation of the practice of law in those courts. Someprovisions of the Connecticut [collection agency] statute are explicitly aimed at preventing theillegal practice of law and otherwise regulate the relationship of collection agencies toConnecticut attorneys.” Defendant attorneys / law firm fit squarely within the aim of the statelaw. Bates v. C & S Adjusters, Inc., 980 F.2d 865 (2d Cir. 1992) is also instructive. There, Judge

5 See also, Carlson v. First Revenue Assurance, 2004 WL 385210 (8th Cir. Mar. 3, 2004) (follows Wade); NationalConsumer Law Center, Fair Debt Collection § 5.5.8.5 (5th Ed. 2004).

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Newman suggested that a collection agency could avoid suit in a distant venue by endorsing “DoNot Forward” on the envelope (id . at 868) and thereby showed collection agencies how to easilyavoid unintentionally sending letters into a state in which they were not licensed.

Analogously, case law agrees that a violation of state law by the unauthorized practice of law is also a violation of the deceptive practices prohibition of the FDCPA. E.g., Herbert v

Monterey Financial Services, Inc., 863 F. Supp. 76, 80 (D. Conn. 1994); Poirier v. AlcoCollections, Inc., 107 F.3d 347 (5th Cir. 1997) (unauthorized practice of law violates §1692e(5); Martinez v. Albuquerque Collection Services, 867 F. Supp. 1495 (D.N.M. 1994) (unauthorizedpractice of law violates §1692e(2) and §1692f(1)).

Defendants’ (lawyers and their law firm) longstanding illegal collections in Connecticut,and their failure to be licensed in any of the states in which they do business, indicates a scofflawattitude unbecoming to attorneys, and such reckless indifference as to call for punitive damages.

Unlicensed collection activity is unfair. Section 1692f provides that “A debt collectormay not use unfair or unconscionable means to collect or attempt to collect any debt.” Like§1692e, the section lists certain types of conduct, “[w]ithout limiting the general application of the foregoing.” The practice of unlicensed collection activity is not only a deceptive or

misleading means within §1692e, but is also “unfair” under §1692(f) because it is within “atleast the penumbra” of some common law, statutory “or other established concept” of unfairness. FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 244 n. 5 (1972). Unfairnessdepends on “(1) whether the practice, without necessarily having been previously consideredunlawful, offends public policy as it has been established by statutes, the common law, orotherwise - whether, in other words, it is within at least the penumbra of some common-law,statutory, or other established concept of unfairness; (2) whether it is immoral, unethical,oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers (orcompetitors or other businessmen).” Statement of Basis and Purpose of Trade Regulation Rule408, Unfair or Deceptive Advertising and Labeling of Cigarettes in Relation to the HealthHazards of Smoking. 29 Fed. Reg. 8355 (1964) (emphasis added).

For a collection agency / law firm to continue to collect in a state where it is not licensedfits within the concepts of “unethical, oppressive, or unscrupulous.” Indeed, under the specificprovisions of Connecticut law, unlicensed collection agency activity is a crime. Conn. Gen. Stat.36a-810. Substantial injury to consumers results from Connecticut’s inability to investigate,regulate, or protect its citizens from these defendants’ serious and persistent substantiveviolations. Competitors who comply with licensing laws and Connecticut’s collection standards(which parallel the FDCPA) are at a competitive disadvantage with these scofflaw defendants.One of the express purposes of the FDCPA is “to insure that those debt collectors who refrainfrom using abusive debt collection practices are not competitively disadvantaged.” 15 U.S.C. §§1692(e).

II. DEFENDANTS VIOLATED THE FDCPA BY COMMUNICATING WITH

PLAINTIFF WHO WAS KNOWN TO BE REPRESENTED BY COUNSEL

In 2002, Plaintiff had sued defendants for their collection efforts on the Wilson checks.Yet, defendants sent her another letter in February 2003, demanding five times the amount thatthey had demanded for the Wilson checks in November 2001. Defendants plainly violated§1692c(a)(2), which mandates that a collector deal only with an attorney once it has knowledgeof representation. The Statements of General Policy or Interpretation Staff Commentary on

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the Fair Debt Collection Practices Act, 53 Fed. Reg. 50097, 50104 (1988) (hereinafter “FTCStaff Commentary”) Commentary § 805(a)(3) says, “If a debt collector learns that a consumer isrepresented by an attorney in connection with the debt, even if not formally notified of this fact,the debt collector must contact only the attorney and must not contact the debtor.” Here, therewas formal notice of representation as to the purported Wilson debt, by prior lawsuit. The

violation by attorneys is inexcusable. Herbert v. Monterey Financial Services, Inc., 863 F. Supp.76, 79 (D. Conn. 1994); Kuhn v. Account Control Technology, Inc., 865 F. Supp. 1443 (D. Nev.1994); Harvey v. United Adjusters, Inc., 509 F. Supp. 1218 (D. Or. 1981) (letters to consumerafter counsel had filed an FDCPA suit on consumer’s behalf).

III. DEFENDANTS SOUGHT ILLEGAL AMOUNTS

Defendants were collecting on alleged January 1996 checks to Wilson totaling $402.78.Their November 2001 demand letter sought payment of $1971.80 on the Wilson account.6 Theletter at issue in this case sought $10,277.56 on behalf of Wilson, and warned that plaintiff “maybe subject to statutory penalties as determined by the court. . . . You may wish to settle this

matter before we seek appropriate relief before a court of competent jurisdiction.”In discovery, defendants admitted that the demand for the additional sum was actuallybased on some two dozen checks written to several different stores in 1996. They did notdisclose this fact in their letter to plaintiff. Defendants also admitted that they had alreadyincluded, not only the statutory penalties, but a $25 charge for each check. The Service Fee islimited by Connecticut statute to “up to” $20, and applies only to checks written after the 1997effective date of §52-565a(i).

Defendants did not disclose the inclusion of these improper amounts. On the face of theFebruary 2003 letter at issue in this case (unlike the face of the November 2001 letter),defendants knew that the penalties could be imposed only “as determined by the court.” Thelawyer defendants arrogated to themselves the penalty and the excessive check charges butconcealed their illegal overreaching from the plaintiff.

The FDCPA prohibits both misrepresenting the amount of the debt (§1692e) and theattempt to collect any amount not allowed by law (§1692f(1)). Defendants violated the FDCPAby knowingly seeking a large multiple of any possible underlying debt. Duffy v. Landberg, 215F.3d 871 (8th Cir 2000); Kojetin v. CU Recovery, Inc., 212 F.3d 1318 (8th Cir. 2000) (percuriam); Picht v. Jon R. Hawks, Ltd., 236 F.3d 446 (8th Cir. 2001). Withholding significantinformation is a deceptive practice. Ingham v. Eastern Air Lines, Inc., 373 F.2d 227, 239 (2dCir. 1967); Bailey Employment System, Inc. v. Hahn, 545 F. Supp. 62, 67 (D. Conn. 1982),aff’d, 723 F.2d 895 (2d Cir. 1983). Compare Emery v. American General Finance, Inc., 134 F.3d1321, 1323 (7th Cir. 1998) (misleading omission can be fraud).

IV DEFENDANTS THREATENED TO SUE ON A TIME BARRED DEBT

Defendants were collecting on alleged January 1996 NSF checks. The letter at issue inthis case warned that plaintiff “may wish to settle this matter before we seek appropriate relief before a court of competent jurisdiction.” At its longest, the statute of limitations was the

6 Judge Kravitz has before him a motion for summary judgment as to the November, 2001 collection letter,including the issue discussed in this section: whether defendants’ demand for unlawful check and penalty chargesviolates the FDCPA. Goins v. JBC & Associates, P.C., Civil No. 3:02CV 1069 (MRK).

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contract statute, six years. The letter was sent seven years after the date of the checks.Defendants themselves could not bring civil proceedings, since they did not own the

account and had no standing. “We” cannot reserve any “right” we do not have. Rosa v. Gaynor ,784 F. Supp. 1, 5 (D. Conn. 1989) (the only possible construction of “we” is the defendant andothers); Herbert v. Monterey Financial Services, Inc., 863 F. Supp. 76, 80 (1994) (lack of

authority to sue).While many cases conclude that one can try to collect on a time-barred debt if suit is notthreatened, all authorities agree that mentioning suit on a time-barred debt violates the FDCPA.E.g., Freyermuth v. Credit Bureau Serv. Inc., 248 F.3d 767 (8th 2001) (“[I]n the absence of athreat of litigation or actual litigation, no violation of the FDCPA has occurred when a debtcollector attempts to collect on a potentially time-barred debt that is otherwise valid”).

As lawyers, defendants were charged with knowledge that their mention of litigation on atime barred debt was unlawful. One could justifiably conclude that their threat was intentional;after all, they drafted the letter. But this conclusion is forcefully confirmed by defendants’ owncollection manual, which instructs their collectors as follows in the “Talk Off”: Tell the debtoryou are calling “from the Law Offices of JBC”; “we will immediately recommend disposition by

a court of competent jurisdiction”; “this case will be immediately recommended to the attorney”;“partial payment will not prevent action in the appropriate court”; frequent references to “theattorney”; and, if the debtor insists on speaking with the attorney” “I will be happy to,Sir/Madam, but please be aware that you will be responsible for all attorney fees if I transfer youto the attorney.”

V. DEFENDANTS VIOLATED STATE LAW

Connecticut’s Consumer Collections Agency Act and Regulations parallel the FDCPA.Reg. Conn. State Agencies §36a-809-3(f), (g). By violating these parallel state laws, defendantshave violated CUTPA, Conn. Gen. Stat. §42-110b. Even if the Banking Department had notalready determined by regulation that the practices were unfair or deceptive, a violation of afederal law is a per se violation of CUTPA (unfair or deceptive practices): Dial Corp. v.

Manghnani Inv. Corp., 659 F. Supp. 1230, 1238-39 (D. Conn. 1987); Chauvin Intern. Ltd. v.

Goldwitz, 927 F. Supp. 40, 49 & n.22 (D. Conn. 1996); Pfizer, Inc. v. Miles, Inc., 868 F. Supp.437, 442 (D. Conn. 1994); Nabisco Brands, Inc. v. Kaye, 760 F. Supp. 25, 29 (D. Conn. 1991); Zoological and Ecological Research Found., Inc. v. Crabtree-Haas Imports, Inc., 7 CSCR1144, 1145 (Oct. 19, 1992) (Katz, J.)

Under CUTPA, there is no need to allege or prove any amount of an ascertainable loss. Hinchliffe v. American Motors Corp., 184 Conn. 607, 612-14, 440 A.2d 810 (1981). “Whenevera consumer has received something other than what he bargained for, he has suffered a loss of money or property.” Id. at 614. “Adoption of the defendants’ view, that ascertainable loss isequivalent to actual damages, would eviscerate the private remedy provided by CUTPA.” Id . at616. “The private loss indeed may be so small that the common law likely would reject it asgrounds for relief, yet it will support an action under the statute.” Weigel v. Ron Tonkin

Chevrolet Co., 690 P.2d 488, 494 (Or. 1984) (citing Hinchliffe). Ascertainable loss does notnecessitate a monetary payment. Aurigemma v. Arco Petroleum Products Co., 734 F. Supp.1025, 1028 (D. Conn. 1990) (court refuses to address “ascertainable loss” because CUTPAdoes “not require a plaintiff to prove a specific amount of actual damages to make out a primafacie case”).

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“Ascertainable loss” is a term of art which entitles a plaintiff to bring an action. Once anaction is brought, the plaintiff may seek actual damages, or – if there are no actual damages –equitable relief.

Section 42-110g provides:

(a) Any person who suffers any ascertainable loss of money or property, real or personal,as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action . . . to recover actual damages. . . . The court may, in itsdiscretion, award punitive damages and may provide such equitable relief as it deemsnecessary or proper.. . . .(d) In any action brought by a person [the court may award attorney’s fees]. . . . In anyaction brought under this section, the court may, in its discretion, order, in addition todamages or in lieu of damages, injunctive or other equitable relief.

Being accused of owing a debt which one does not owe is ascertainable loss. Cox v.

Sears, Roebuck & Co., 647 A.2d 454, 464 (N.J. 1994); Sorge v. Transworld Systems, Inc., Civil

No. 3:94CV71 (JBA) (D. Conn. Sept. 19, 1996); Rizeck v. Connecticut Coast Fitness Centers Inc., 7 Conn. Ops. 469, 471 (Apr. 30, 2001) (rejecting the need to prove actual damages). “It isenough if the consumer received something different from what had been bargained for. [citing Hinchliffe v. American Motors Corp., 184 Conn. 607, 612 (1981)]. Depriving a consumer of information required to be provided by law, or giving a consumer deceptive or misleadinginformation causes “ascertainable loss.” Denino v. Valenti, 1993 Conn. Super. LEXIS 2686,1991 CaseBase 8193 (1993). Collecting a debt through deception or unfair means also causes“ascertainable loss.” Halloran v. Spillane’s Servicenter, Inc., 41 Conn. Supp., 587 A.2d 176, 181(1990).

Plaintiff has ascertainable loss when she got a letter that violated state and federal laws.She has a cause of action, even if she recovers only $1.00 in nominal damages. Larsen Chelsey

Realty Co. v. Larsen, 232 Conn. 480, 499 (1995). Her monetary loss, to be ascertainable, may beas little as a 33¢ stamp, a toll call, or gas or parking to visit an attorney. Wiginton v. Pacific

Credit Corp., 634 P.2d 111 (Hawaii 1981); Shubach v. Household Finance Corp., 376 N.E.2d140, 141 (Mass. 1979) (toll calls and travel to meet with counsel). St. Paul Fire & Marine Ins.

Co. v. Updegrave, 656 P.2d 1130, 1134 (Wash. Ct. App. 1983) (consumer’s damages “includethe consumer’s inconvenience, financial considerations such as loss of time in helping preparethe case”).

Even absent actual damages, plaintiff is entitled to the injunctive and punitive relief sheseeks. Plaintiff bases her claim for punitive damages on the fact that defendants, attorneys and alaw firm, have intentionally persisted for many years in collecting in Connecticut without acollection agency license (despite representing that they are licensed in every state); sent the

plaintiff a form letter which seriously misrepresented Connecticut law and the consequences of writing a dishonored check; intentionally abused their status as attorneys to create (unfounded)fear of civil litigation in the recipients of the form letter; sent their intimidating “attorney” formletter without so much as receiving or reviewing any check or the creditors’ practices as a basisfor forming an opinion about how to manage plaintiff’s case; and routinely—but secretly–imposed charges not permitted by law in their form letters. No “attorney” should be involved insending such deceptive form letters to consumers. Any lawyer familiar with the FDCPA, as thesedefendants are required to be, knows that such tactics have been held to violate the FDCPA since

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at least 1988. The law cannot be so interpreted as to be helpless to deter their longstanding andpersistent abuses.

CONCLUSION

There are additional violations, but plaintiff has shown sufficiently numerous and serious

violations to warrant an award of the maximum statutory damages by the court and thesubmission of the amount of punitive damages to the jury.

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