A client had retained me in late 2013 to defend her against three (3) lawsuits filed against her in Hudson County, NJ Special Civil Part by a collections firm in Eatontown NJ.

Yesterday, 2 of the 3 cases against her were dismissed.

The firm represents Capital One directly in its credit card collections cases (apparently, Capital One is reluctant to “charge off” bad credit cards and sell the delinquent debt “down the line” to a collector like Midland Funding or New Century or Cavalry SPV, etc).

Capital One had filed 3 separate complaints under 3 separate docket numbers in Hudson Special Civil.  Capital One was alleging that my client had three separate credit cards/charge accounts with Capital One, all of which were allegedly delinquent. (Of course, since Capital One sends out about 98 billion “junk mail” credit card solicitations a day to every man, woman, child, pet, and corpse on the planet Earth, this isn’t really surprising).

I immediately filed an Answer to all 3 cases, and then filed three “Motions to Dismiss” based on something called the “entire controversy doctrine.” The entire controversy doctrine is a Court rule that requires related claims between the same parties to be brought in a single action, rather than in a piecemeal manner. For example, if I tripped and fell on your sidewalk and broke my arm AND sprained my ankle, I would file ONE complaint for my total injuries, not a separate complaint for both the arm and the ankle!

However, I did not prevail on my Motions to Dismiss, because the Court apparently felt that since there were 3 different alleged Capital One accounts, a separate lawsuit could legally be filed for each one, since the accounts were (allegedly) opened at different times, etc, and had different balances.

Even though I was unsuccessful on these Motions, it created LOTS of extra work for the collection firm, who had to write a opposition briefs to all 3 Motions, and caused a massive headache for them right off the bat. They knew I wasn’t going to be an easy guy to fight off!

That’s because I believe a defendant should ALWAYS play an “offensive game” whenever possible, and constantly “push back” against the collectors, making their litigation as difficult and miserable as possible. After all, they’re the ones who started the fight! Besides, they receive tax brakes and government bailouts for their “losses,” so it’s impossible to have any sympathy for them. Do you think the Donald Trumps and such of the world pay all of their debts? If so, I have a bridge in Brooklyn to sell you 🙂

The collection firm then fought back by filing Motions for Summary Judgment in all three cases. I opposed all 3 based on the recent holding of New Century Finanaical vs. Oughla, as well as the landmark case of LVNV Funding vs. Colvell. Both of these controlling appellate decisions mandate the documents necessary to prevail on a revolving credit account (such as a Capital One credit card). One of the proofs the collector must provide is a final credit card billing statement which shows:

The interest rate charged to the account,

How the interest rate is computed,

The total charges on the account,

A statement from the account’s last billing cycle.

For unknown reasons, the collection firm failed to attach these above-required items to its Motion for Summary Judgment. Why were they so sloppy?

My guess is that the Motions were cut n’ pasted together by a secretary making minimum wage, then merely signed by the attorney and filed. Remember folks- collections is a high volume practice, and collection attorneys are always after the “easy dollar.” They have only a limited amount of time to devote to any single case, and often get sloppy/lazy, fail to proofread accurately, fail to attach exhibits, etc. They are also accustomed to having unrepresented laypersons as their adversaries, who don’t know how to draft an effective and winning Opposition to a summary judgment motion, nor which cases to cite, nor the proper format of an Opposition.

I defeated 2 of the 3 summary judgment motion filed by Capital One. Luckily, the two I defeated were for the highest balance accounts (a $4000 and a $2400). The one I lost was for an account with only a $650 balance. I believe since it was such a small case the judge didn’t spend adequete time reviewing the papers, but that’s only my guess- written opinions are typically not issued in Special Civil Part cases.

The plaintiff agreed the day BEFORE trial to dismiss voluntarily the 2 cases where he was denied summary judgment. Of course, he could have still had a trial in the case, and possibly even won at trial. (all a denial of summary judgment means is that there are issues of fact which require a trial to sort out, hence the plaintiff is not entitled to “automatic” judgment.

So why didn’t Capital One’s lawyers want the trial?

My guess is that, since most collectors take 1/3 of whatever they collect on a case as their legal fee, they determined it wasn’t worth the trouble to drive all the way to Court in Jersey City from their office in Ocean County to try the case.

You see, when you get the little beige postcard in the mail from the Court that says “your trial date has been scheduled for May 2, 2014 at 9:00 am in Ctrm 2 before Judge Smith,” it doesn’t mean the Court has specifically reserved time for your case.

In reality, the Special Civil Parts in NJ (esp in the North Jersey counties of Bergen, Passaic, Essex etc) are literally overwhelmed with cases.  If you get to Court at 9:00 am, it is very likely your trial won’t begin until 2:00 in the afternoon, if it even begins at all. Often the judge may have other matters to hear which take priority, or time simply runs out and they can’t get to all the cases on the calendar, etc. The Special Civil Part also hears all landlord-tenant cases, as well as small claims matters. They really aren’t equipped to handle the massive volume of credit-card cases filed by the likes of Pressler & Pressler and other “high-volume” collection practices.

Thus these “trials” are a total nightmare to get completed, and a MASSIVE waste of time. Time is an expensive commodity to attorneys, and to spend 8 or 10 hours to earn a fee of 1000 bucks or so, out of which they also must pay gas, parking, etc just ain’t worth it. Remember, even if the plaintiff wins the case at trial, all they obtain is judgment. Often the losing party has no money to pay the judgment with, and of course the judgment itseld can always be discharged in a Chapter 7 bankruptcy, provided one qualifies. So even trial “wins” often end up in losses for the collection attorneys. Most of the time, the cost-benefit analysis just doesn’t work, and they end up moving on to easier prey.

Remember, your best “defense” to a collection action in NJ Special Civil Part is to retain an attorney who specializes in defending these cases. Call me today at 908-782-5313 for a free 5 minute phone consultation about YOUR case. My fees start at just $375, and I accept Paypal and all major credit cards. Call me today!

 

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