Wolpoff & Abramson Refuses To Read Law Books, Attacks FDCPA Champion, Gets Smacked

CROW v. WOLPOFF & ABRAMSON, LLP, USDC-MND Civil No. 06-3228, 2007 U.S.Dist. LEXIS 31356, before USMJ Mayeron, filed 19 Apr 2007. LONG STORY SHORT: Collection agency's self-designated affirmative defense seeking attorney fees under Rule 11, Section 1927, and FDCPA bad-faith provision was not an affirmative defense at all, and would be stricken. Not binding anywhere but may be persuasive. FACTS: Defendant, a lawyer-owned collection agency with a nationwide business, mailed a dunning letter dated 15 May 2006 to Plaintiff, who was out of town on a job site and then at his lake house, and did not receive the letter until 30 May 2006. Plaintiff mailed a validation request to Defendant on 22 June 2006, within the 30-day time limit after receiving the dunning letter. Instead of validating the alleged debt, Defendant responded only with a "Notice of Intent to Sue" letter dated 28 June 2006. PROCEDURE: Plaintiff sued Defendant in U.S. District Court for the District of Minnesota per 15 U.S.C. § 1692g for proceeding with collection efforts before validating the debt. Apparently unaware that Plaintiff had in fact requested validation within the 30-day limit, Defendant included in its answer the following, designated Sixth Affirmative Defense (hereinafter SAD): "Plaintiff and Plaintiff's counsel's pursuit of Defendant is in bad faith and solely to harass and annoy, entitling Defendant to any award of attorney's fees, as well as their costs and disbursements incurred herein as sanctions, and that if Plaintiff and Plaintiff's counsel continues to prosecute or further this litigation or fails to immediately dismiss this lawsuit, will be in violation of Fed. R. Civ. P. 11, 28 U.S.C. § 1927 and 15 U.S.C. § 1692k(a)(3) and will be liable for Defendant's attorneys fees and costs for multiplying the proceedings in this cases unreasonable and vexatiously, asserting claims solely to harass and annoy Defendant and in asserting claims contrary to the applicable law in this area." Plaintiff's counsel, well-known FDCPA consumer advocate Thomas J. Lyons Jr., emailed Defendant's in-house lawyer Jill N. Brown to explain the apparent delay in responding, and asked that Defendant withdraw SAD. Instead, Defendant chose to disbelieve Plaintiff, and refused to withdraw SAD. Plaintiff moved per Rule 12(f) to strike SAD as legally insufficient and scandalous. Defendant argued that even if SAD was not an affirmative defense, the trial court should treat SAD as a counterclaim. DECISION: Rule 12(f) motions to strike are disfavored, but are appropriate when an affirmative defense is either scandalous or legally insufficient. Affirmative defenses are supposed to raise issues outside the scope of a plaintiff's pleadings. If true, an affirmative defense will defeat a plaintiff's claim even if what the plaintiff says is also true. Instead, SAD was just a denial of Plaintiff's pleaded facts, to wit, that he did not get the letter until less than 30 days before he requested validation. Rule 11 requires a separate motion, and cannot be raised by affirmative defense or counterclaim. [Note: If W&A actually pulled out Rule 11 and read it, they would know this.] Therefore, the SAD request for Rule 11 sanctions was procedurally insufficient. 1692k(a)(3) and Section 1927 fees are not counterclaims either, because counterclaims are independent grounds for relief, whereas bad faith and vexatiousness depend on resolution of the original action. Here, facts as to when Plaintiff got Defendant's letter needed to be resolved before addressing any question of bad faith. Plaintiff's argument that SAD was scandalous, meaning that it unnecessarily reflected on the character of an individual or stated anything in repulsive language that detracted from the dignity of the court, was superfluous. SAD was legally insufficient as an affirmative defense or counterclaim, so the trial court would not address whether it was also scandalous. MOTION TO STRIKE GRANTED. EDITORIAL: Score one for the good guys against the functionally illiterate hooligans of Wolpoff & Abramson. THEY accuse Tom Lyons of harassment and annoyance? Talk about the snowflake calling the bedsheet white! Wolpoff & Abramson refers to itself as a law firm, but it is nothing better than a few hundred nonlawyer bill collectors underneath a fistful of arrogant jerks with law licenses. Naturally, the nonlawyer bill collectors take this as permission to abuse and terrorize consumers, cruelly delighting in their fraudulent power. You think I'm making this up? I've had the displeasure of negotiating the maze of Wolpoff & Abramson's massive phone system, trying to talk to a real lawyer about my clients' cases. What, real lawyers work at Wolpoff & Abramson? You'd never know it from calling them. I was handed off from one clueless cretin to another, having to re-explain myself every time. I finally arrived at some petty manager's desk, and among other things he told me "You are the debtor! You don't tell US what to do!" Hmmm ... watch me. At length, a more mild-mannered drone personally promised me that Mr. Ronald Abramson Esq. himself would be calling by the end of the day. That was last year, and I'm still waiting. We see from this case that nothing changes at Wolpoff & Abramson. How about pulling out a law book and reading it sometime? Isn't that what REAL LAWYERS do? It seems that like real men don't ask directions, real lawyers don't read statutes, rules, or cases. Well, Wolpoff & Abramson are nearly billionaires now, so I guess at some level it works. Keep up this foolishness, Wolpoff & Abramson, and I'll retire off of you.