1
2
3
4
Christine Baker
[deleted]
Fax: (571) 222-1000
Email: christine@bayhouse.com
In Pro Per
5
6
7
IN THE UNITED STATES DISTRICT COURT
8
FOR THE DISTRICT OF ARIZONA
9
10
Christine Baker;
11
12
13
Plaintiff,
v.
Fair, Isaac & Company, et al;
14
Defendants.
15
16
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
CIV-03-0525-PCT-RCB
PLAINTIFF’S RESPONSE IN
OPPOSITION TO VERIZON
WIRELESS’ MOTION FOR
SUMMARY JUDGMENT AND
MOTION TO WITHDRAW HER
ADMISSIONS
(Oral Argument Requested)
17
18
19
20
21
22
23
24
25
26
27
28
Plaintiff Christine Baker hereby responds to the Verizon Wireless (“Verizon”)
Motion for Summary Judgment (“MSJ”) and her Objection is supported by the
accompanying Memorandum of Points and Authorities, her responses to the Verizon
Separate Statement of Facts and Controverting Facts, Affidavit and exhibits.
Plaintiff requests that the Court allow Plaintiff to withdraw the 1/24/06
Admissions and to substitute her Responses originally served on 1/25/06.
Plaintiff denies that she was not wronged by Verizon. The Court has subject
matter jurisdiction due to the Fair Debt Collection Practices Act (“FDCPA”) claims in
her proposed First Amended Complaint and Plaintiff’s damages are recoverable. Plaintiff
timely filed her Motion For Leave Of Court To File Her First Amended Complaint on
3/15/06.
-1-
1
Since Plaintiff could not locate the Exhibits referenced by Verizon (the Verizon
2
MSJ is attached to its amended Statement of Facts instead of the exhibits), Plaintiff
3
attached her Responses to the Verizon Requests as Exhibits UW.
4
5
6
7
8
9
10
11
12
13
14
15
MEMORANDUM OF POINTS AND AUTHORITIES
I. PLAINTIFF’S ADMISSIONS
Verizon claims that Plaintiff admitted all matters requested in its First Set of
Requests for Admissions (“RFA”) because she served her Responses to the Verizon RFA
1 (one) day late, as she apparently miscalculated the due date. Verizon wrote in its MSJ,
p. 2, 11-15:
Failure to timely respond to requests for admissions results in an automatic
admission of the matters requested. See Federal Trade Comm’n v. Medicor,
LLC, 217 F.Supp.2d 1048, 1053 (C.D. Cal. 2002) (holding that failure to
timely respond to requests for admissions results in an automatic admission
of matters requested, even if the requesting party makes no motion to
establish admission);
Apparently Medicor did not provide any responses to the admissions and argued
16
that a motion to establish admission had to be filed. Plaintiff is not making this
17
argument, she accidentally served her Responses one day late.
18
19
20
21
Verizon cited in its MSJ, p. 2, 15-17:
Upchurch v. USTNET, Inc., 158 F.R.D. 157, 161 (D.Or. 1994) (holding that
party was entitled to have matters requested for admission declared
admitted by default where defendant failed to respond to properly served
request for admissions within required 30 days);
22
23
USTNET had filed its responses to the Upchurch requests for admissions 2 weeks
24
late and the court later granted USTNET’s motion for reconsideration: Upchurch v.
25
USTNET, Inc., 160 F.R.D. 131 (D.Or. 1995). The court wrote: “The motion of USTNET
26
for reconsideration of its motion to withdraw its admissions (#41--2) is granted, and on
27
reconsideration, the motion of USTNET to withdraw its admissions (#29) is granted.
28
USTNET may withdraw its admissions to Upchurch's requests [**10] for admissions and
substitute the responses which USTNET originally filed on January 28, 1994.”
-2-
1
Verizon cited in its MSJ, p. 2, 18-22:
2
An-Port, Inc. v. MBR Industries, Inc., 772 F.Supp. 1301, 1305 (D.Puerto
Rico 1991) (holding that plaintiff’s failure to respond to defendant’s request
for admissions within period given resulted in automatic admission of
requests contained therein, conclusively establishing admitted facts as law
of case, which could be utilized by defendant to support motion for
summary judgment).
3
4
5
6
7
8
9
10
11
12
13
14
15
However, An-Port filed its motion for extension of time not until 10 days after the
due date for its responses and then it failed to respond within the enlarged period given.
Plaintiff was merely 1 day late and she requests that the Court allow her to substitute her
Responses served on 1/25/06.
II. Genuine Issues As To Material Facts
The most important issues:
1) Verizon attempted to collect a debt that did not exist.
Verizon did not address this issue and it instead focused on Plaintiff’s admissions,
claims, jurisdiction and damages.
16
Plaintiff couldn’t have cared less if Verizon’s collection activities had been limited
17
to sending invoices or suing her for the alleged debt. After all, Verizon would have had
18
to serve her with the summons and Plaintiff would have been able to prove that the debt
19
did not exist.
20
However, Verizon is not the only creditor to extort payments of nonexistent debts
21
through threats of credit reporting. In 1997, Defendant Pacific Bell (dismissed for lack of
22
personal jurisdiction) also assigned a debt that did not exist to its collection agency and
23
Plaintiff’s disputes to Pacific Bell and the collector, including numerous submissions of
24
her cancelled check, were ignored. This fraudulent collection destroyed Plaintiff’s credit
25
26
rating, prevented her from refinancing her mortgage and subsequently she had to sell her
house. Plaintiff decided to take the proceeds from the sale and to go on a long vacation
27
and travel rather than going on a killing spree or committing suicide.
28
-3-
1
Nothing is more frustrating than knowing that you did nothing wrong, you paid
2
your bills, the creditors received all payments, but they demand payment again and
3
they threaten to ruin your credit if you don’t pay an entirely fraudulent debt.
4
5
6
7
8
By 2001, 4 different collection agencies reported the disputed and nonexistent
Pacific Bell debt as collection on Plaintiff’s credit reports and Plaintiff never received
any notice!
Threats of credit reporting are an incredibly effective tool to extort monies not owed.
Consumers often don’t know that a creditor or collector is reporting a collection until
9
applications are denied and/or existing creditors raise rates or close accounts.
10
Verizon’s own documents submitted with its Initial Disclosures, Exhibits AV -
11
12
13
14
15
VER0008, VER0009, VER0011, VER0012, document that it received Plaintiff’s
payments as it posted the payments to her account. Plaintiff can’t understand why it is
impossible for anyone at Verizon to determine that Plaintiff did not owe the debt it was
collecting:
16
Final statement balance: $84.58 - $90 - $85 + $90 = ?????
17
Plaintiff did not cash the $90.42 final refund check [Affidavit ¶ 15, Exh. AU-7]
18
issued by Verizon in error and she advised Verizon, its collectors and the FCC
19
accordingly.
20
2) Verizon continued to collect despite Plaintiff’s many disputes
21
Verizon did not address this issue other than to state that plaintiff’s extortion claim
22
is not a “cognizable claim.” [MSJ, p. 9, ln. 18] and it claimed that Plaintiff never had an
23
account with Verizon. Apparently Verizon changed the names in its computer to delete
24
Plaintiff’s name. However, Plaintiff opened and maintained the account at all times.
25
[Affidavit ¶¶ 2-7]. In her 6/1/2000 response to Plaintiff’s FCC complaint, Verizon’s
26
Kay Howe, Administrator – Regulatory Department, stated “[we] have verified that Ms.
27
Baker’s account was closed on 01-08-1999.” [emphasis added] [Exhibit AU-11]
28
-4-
1
III. LEGAL ARGUMENT
2
A. Standard of Review
3
4
5
6
7
8
In seeking rulings from the Court as a matter of law, the court views the evidence
and all reasonable inferences therefrom in the light most favorable for the non-moving
party. Celetex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548 (1986). Summary judgment
is only appropriate where there is no dispute of a material fact, and where evidence
presented by the moving party forecloses the possibility of any facts that would support a
reasonable inference in the non-moving party’s favor. Anderson v. Liberty Lobby, Inc.,
9
477 U.S 242, 249, 106 S.Ct. 2505 (1986).
10
Clearly, the exhibits and Plaintiff’s Affidavit and Controverting Statement of Facts
11
12
13
14
establish numerous disputes of material facts and the Verizon MSJ should therefore be
denied.
B. Plaintiff Did NOT Admit that She Has Not Been Wronged or Damaged by
Verizon.
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Verizon claims that Plaintiff’s service of her Responses to Verizon’s Discovery
Requests on 1/25/06 instead of 1/24/06 results in automatic admissions. However, as
explained in a comment to Federal Rule 36(b), "the admission that otherwise would
result from a failure to make timely answers should be avoided when to do so will aid in
the presentation of the merits of the action and will not prejudice the party who made the
request."
Rabil v. Swafford, 128F.R.D. 1 (D.D.C. 1989). The party who obtained the
admissions must then show prejudice in maintaining the action or defense on the merits.
If the party who obtained the admissions cannot show prejudice, the court should permit
withdrawal or amendment.
Verizon cannot show prejudice and it did not even attempt to show prejudice
in its MSJ.
In Gonzales v. Boas, 2005 Md. App. LEXIS 54, the admissions were filed 8 days
late. The circuit court granted the appellee's motion to strike appellant's response as
-5-
1
untimely. After holding that appellant was deemed to have admitted the facts contained
2
in the request for admissions, which eliminated any genuine dispute as to material facts,
3
the court entered summary judgment in appellee's favor. The court of special appeals
4
reversed the circuit court’s judgment and remanded to the circuit court:
5
6
7
8
9
This opinion should not be interpreted as condoning the late filing of a
response to a request for admissions or any other violation of the Rules.
Balanced against the need for enforcement of the rules, however, is the
dependence of litigants on the sound exercise of discretion, when permitted
by the Rules, to prevent injustice resulting from an insubstantial
technicality.
10
Verizon’s own statements submitted with its Initial Disclosures document that the
11
debt it attempted to collect for several years despite Plaintiff’s numerous disputes did not
12
exist and dismissing Plaintiff’s claims because she responded to Verizon’s requests one
13
14
day late would certainly result in great injustice.
Plaintiff agreed to stipulate to Verizon’s request for an extension to answer the
15
Complaint (doc. # 9). According to the Joint Proposed Case Management Plan, the initial
16
disclosures were due on 12/5/05 and Plaintiff did not object to Verizon’s serving its
17
18
19
20
21
22
23
24
25
26
27
28
Initial Disclosures 4 days late.
Plaintiff requests that the Court allow Plaintiff to withdraw her 1/24/06 admissions
and to substitute the Responses she originally served by first class mail on Verizon the
next day, on 1/25/06. [Exhibit AV-1]
C. Subject Matter Jurisdiction
In her proposed First Amended Complaint, Plaintiff seeks to add claims for
violations of the FDCPA by Verizon and this Court has subject matter jurisdiction 15
U.S.C. §1692k(d).
While creditors are generally not liable for FDCPA violations, a creditor who uses
someone else’s name so as to suggest to the debtor that a third party is involved in the
debt collection process, when in fact that party is not involved, can be treated as a “debt
collector” under the FDCPA. Nielsen v. Dickerson, 307 F.3d 623 (7th Cir., 2002).
-6-
1
In response to Plaintiff’s disputes, Verizon’s collection agencies never validated
2
this alleged debt and never attempted to validate this alleged debt as it did not exist.
3
Despite Plaintiff’s numerous disputes of the alleged debt with Verizon, the FCC and the
4
Verizon collectors, Verizon continued to collect the disputed debt. When a collector sent
5
the account back to Verizon after receiving Plaintiff’s dispute, Verizon ignored the
6
dispute and assigned the account to another collector. In fact, it was Verizon collecting
7
under the collectors’ names, making it liable for the continued collection activities and
8
other violations of the FDCPA.
9
Plaintiff timely filed her Motion For Leave Of Court To File Her First Amended
10
Complaint on 3/15/06 and this Court retains jurisdiction for FDCPA claims.
11
D. Plaintiff’s damages due to FDCPA, negligence and gross negligence claims are
recoverable
12
13
Plaintiff supplemented her Responses to Verizon to add claims of negligence and
14
gross negligence on 2/14/06. In her proposed First Amended Complaint, Plaintiff seeks
15
to add claims against Verizon for negligence, gross negligence and for violations of the
16
FDCPA. A debt collector who has violated any provision of the FDCPA is liable for
17
actual damages. 15 U.S.C. 1692k(a)(1).
18
Actual damages include emotional distress.
19
The debt collector may be held "liable for any mental and emotional stress,
20
embarrassment, and humiliation caused" by improper debt collection activities. Kleczy v.
21
First Federal Credit Control, Inc., 21 Ohio App.3d 56, 486 N.E.2d 204, 207 (1984);
22
Venes v. Professional Service Bureau, Inc., 353 N.W.2d 671 (Minn. Ct. App. 1984);
23
Baez-Martinez v. PMS, 1997 U.S. Dist. LEXIS 3314 (D.P.R. 1997); McGrady v. Nissan
24
Motor Accep. Corp., 40 F.Supp. 2d 1323 (M.D.Ala. 1998); Carrigan v. Central
25
Adjustment Bureau, 502 F.Supp. 468 (N.D. Ga. 1980); Rawlings v. Dovenmuehle Mtge,
26
Inc., 64 F.Supp.2d 1156 (M.D.Ala. 1999).
27
28
Plaintiff’s damages are recoverable due to the new claims in her proposed First
Amended Complaint.
-7-
1
2
F. Verizon Is Not Entitled to An Award of Attorneys’ Fees.
Verizon has the audacity to request attorneys’ fees instead of admitting that it
3
collected a debt that never existed. This is not an isolated incidence, but Verizon
4
operates under the presumption that it is perfectly acceptable to move consumers’ hard
5
earned money into its bank accounts regardless of the merits of its collection activities.
6
Plaintiff doesn’t know anything about contract law. Presumably, Verizon could
7
have sued Plaintiff for the alleged debt, as the contract required Plaintiff to pay for the
8
service she received from Verizon. However, Plaintiff has no idea why the contract
9
would have anything to do with the collection of a debt that does not exist. While
10
Plaintiff must have misfiled the contract and she cannot currently locate it and Verizon
11
did not provide the contract with its initial disclosures, it seems unlikely that it contains
12
any clauses regarding the collection of a debt that does not exist.
13
14
15
Notably, Verizon claimed that no contract existed to get a dismissal [SOF at ¶ 5]
and then argued that a contract did exist to get an award for attorneys’ fees.
The Court should not award Verizon any attorneys’ fees and costs even if it grants
16
its Motion for Summary Judgment.
17
IV. CONCLUSION
18
For the foregoing reasons, Plaintiff requests that the Court deny Verizon’s Motion
19
for Summary Judgment and request for attorneys’ fees and costs and grant Plaintiff’s
20
Motion to Withdraw her Admissions and substitute with her Responses served on
21
1/25/06.
22
RESPECTFULLY SUBMITTED this 20th day of March, 2006.
23
24
/s Christine Baker
Plaintiff Pro Per
25
26
27
28
-8-
1
2
3
4
CERTIFICATE OF SERVICE
I hereby certify that on the 20th day of March, 2006, I electronically transmitted
the foregoing to the Clerk’s Office using the CM/ECF System for filing and transmittal of
a Notice of Electronic Filing to the following CM/ECF registrants:
5
6
7
8
9
10
11
12
13
14
15
16
17
Rodrick J. Coffey
STINSON MORRISON HECKER LLP
1850 N. Central Avenue, Suite 2100
Phoenix, Arizona 85004-4584
Attorneys for Defendant Verizon Wireless
Scott Kirkner
JONES DAY
3 Park Plz Ste 1100
Irvine CA 92614-2592
Attorneys for Experian Information Solutions and Consumerinfo.com
Philip Overcash
KUTAK ROCK LLP
8601 N Scottsdale Rd Ste 300
Scottsdale AZ 85253-2738
Attorneys for Nelnet Loan Services, Inc.
18
A copy mailed USPS to:
19
20
21
22
HONORABLE ROBERT C. BROOMFIELD
United States District Court
Sandra Day O’Connor U.S. Courthouse, Suite 626
401 West Washington Street, SPC 61
Phoenix, AZ 85003-2158
23
24
25
s/ Christine Baker
26
27
28
-9-