Crossley v. Lieberman
| Decision Date | 13 July 1988 |
| Docket Number | Misc. No. 88-0084. |
| Citation | 90 BR 682 |
| Parties | Mary CROSSLEY v. Arnold LIEBERMAN. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
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David A. Searles, Community Legal Services, Philadelphia, Pa., for plaintiff.
Anne Matchulet, Swartz, Cambell and Detweiler, Philadelphia, Pa., for defendant.
I have before me RECOMMENDED OPINION CONTAINING PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW submitted to me by Order dated February 12, 1988 of United States Bankruptcy Judge David A. Scholl in Bankruptcy No. 87-02394S, Adversary No. 87-0569S 90 BR 669. I have also before me DEFENDANT ARNOLD R. LIEBERMAN'S OBJECTIONS TO PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW (filed March 4, 1988), MEMORANDUM IN RESPONSE TO DEFENDANT'S OBJECTIONS TO PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW (filed by plaintiff on March 21, 1988), and SUPPLEMENTAL BRIEF OF DEFENDANT ARNOLD R. LIEBERMAN (filed April 20, 1988).
This case is a non-core adversary proceeding related to a proceeding under Chapter 7 of the Bankruptcy Act, 11 U.S.C. § 701 et seq. Federal jurisdiction is base on an alleged violation of the federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA") and 28 U.S.C. § 1334. In addition to the federal FDCPA claim, there is a state claim under the Pennsylvania Debt Collection Trade Practices Regulations, 37 PA CODE § 303.1 et seq., as enforced through the Pennsylvania state Uniform Trade Practices and Consumer Protection Law, Pa.Stat.Ann. tit. 73, § 201-1 et seq. (collectively "DCTPR"). As a noncore adversary proceeding, it was heard by the bankruptcy judge pursuant to 28 U.S.C. § 157(c)(1), and has been presented to me for final order.
Pursuant to 28 U.S.C. § 157(c)(1) (West Supp.1988) and Bankr. Rule 9033(d), 11 U.S.C.A., I must review de novo those matters to which any party has timely and specifically objected. De novo review requires me to make an independent judgment of the issues. Matter of Campbell, 812 F.2d 1465, 1467 (4th Cir.1987); Moody v. Amoco Oil Co., 734 F.2d 1200, 1210 (7th Cir.1984). In doing so, I have examined the entire record in this matter.
The debtor, Mary Crossley, is a widow aged 70 years. She filed an action to adjust her debts under Chapter 13 of the Bankruptcy Act, 11 U.S.C. § 1301 et seq., on May 15, 1987. The case was converted to a Chapter 7 liquidation proceeding on December 4, 1987. This adversary proceeding was brought on June 12, 1987, with the filing of a complaint. When the defendant failed to answer the complaint, a default was entered on July 24, 1987, and a hearing on the issue of damages only was scheduled on August 12, 1987. Thereafter, plaintiff filed a motion for a default judgment. The defendant suddenly sprang into action, opposed this motion and also filed a proposed Answer. The bankruptcy judge ultimately vacated the default and, in an Order of September 15, 1987, directed the defendant to answer the complaint and outstanding discovery prior to a trial scheduled on October 13, 1987.
The trial was continued to November 10, 1987, so defendant could take plaintiff's deposition. This deposition was taken on October 30, 1987 in plaintiff's home. It was taken there because plaintiff claimed she could not, for medical reasons, venture out for the deposition. Just prior to trial, plaintiff moved to admit the deposition transcript into the record in lieu of her live testimony, contending that, for medical reasons, she could not attend trial. On November 10, 1987, the bankruptcy judge granted that motion, over defendant's objection, subject to the defendant's right to take a supplemental deposition of plaintiff on or before November 30, 1987. The remainder of the trial was scheduled for December 15, 1987.
On the latter date, the defendant, to the surprise of plaintiff's counsel, failed to appear for trial. The bankruptcy judge therefore continued the trial until January 6, 1988, allowing either party to subpoena the defendant to appear. After initially agreeing to produce the defendant, his counsel, in a letter dispatched just prior to New Year's weekend, withdrew the offer. Plaintiff's counsel thereafter made unsuccessful attempts to deliver a subpoena to the defendant. On January 6, 1988, the defendant again failed to appear. At that time, in lieu of the bankruptcy court's offer to continue the matter again and direct the defendant to appear, plaintiff's counsel offered into evidence certain responses to discovery and, as Exhibit P-3, a portion of the transcript in Clara Littles v. Lieberman, Bankruptcy No. 87-00092S, Adversary No. 87-02394S, Misc. No. 88-0083. This case involved similar facts, and the testimony was offered in the absence of defendant to provide evidence concerning issues common to both. Also offered, as Exhibit P-7, was a certified copy of a listing of all actions filed by the defendant in the Court of Common Pleas of Philadelphia County from June 1, 1986, through December 30, 1987. Exhibits P-3 and P-7 were admitted over the defendant's objection. Defendant, in his objection filed March 3, 1988, did not object to admission of Exhibit P-3, and I therefore consider an objection to that exhibit to be waived. He did continue his objection to Exhibit P-7, and I deal with that below in connection with the discussion of Finding of Fact No. 7 (Proposed Finding of Fact No. 8).
The bankruptcy judge, after making his proposed findings of fact and conclusions of law, recommended judgment in favor of plaintiff in the amount of $500.00. For the reasons given below, I am adopting modified findings of fact and conclusions of law, and am entering judgment in favor of plaintiff in the amount of TWO THOUSAND ($2,000.00) DOLLARS.
Before proceeding to my findings of fact and conclusions of law, I want to lay to rest the question of the timeliness of defendant's objections to the proposed findings. The notice of the Clerk of Court and the Order of 25 January 1985 conflict with Bankr. Rule 9033(b). I find that Rule 9033(b) governs. However, because of the confusion created by this court's own order, and because it is the policy of this Circuit to try cases on their merits, not narrow technicalities, I will accept defendant's objections and plaintiff's memorandum in response as being timely filed.
My Findings of Fact are:
1. In August, 1986, Mary Crossley received a letter dated August 4, 1986, on the letterhead of and sent by defendant, reading as follows:
Very truly yours /s/ Arnold R. Lieberman ARNOLD R. LIEBERMAN, ESQ.
2. Plaintiff had not received any prior letters from defendant or Fleet Consumer Discount Company ("Fleet") concerning her account. The letter in question was sent on behalf of Fleet. At the time she received the letter, plaintiff was delinquent in payments on a loan owned by Fleet secured by a mortgage on her home.
3. Plaintiff is a 70-year old widow whose principal employment after graduation from high school was as a waitress. Plaintiff has a severe breathing problem which makes it very difficult for her to leave her home. She has not consulted a physician for several years.
4. The letter, which plaintiff interpreted as a threat "to sheriff sale her house", allegedly "scared the daylights out of her" and caused her to cry, not eat, not sleep, and reportedly lose twenty-five (25) pounds.
5. The letter caused plaintiff to believe that if she did not pay at once, her mortgage would be foreclosed and her house sold. Consequently, she terminated her part-time job with the School District of Philadelphia so that she could cash-in her contributions to the pension plan, amounting to something over $800.00.
6. The emotional distress occasioned by the letter, and the unnecessary termination of her part-time employment, caused plaintiff to suffer damages in the amount of $1,000.00.
7. In June and July of 1986, defendant filed thirty-two (32) cases in the Philadelphia County, Court of Common Pleas. Twenty-two (22) of these were mortgage foreclosures, two (2) were ejectments and seven (7) were general civil actions with financial institutions as plaintiffs. The remaining case was for Divorce A.V.M. Fleet was plaintiff in fourteen (14) of these actions.
As a prelude to my discussion of the bankruptcy judge's proposed findings of fact and conclusions of law, I will give my reasons for including plaintiff's deposition as evidence in this case. The deposition, taken at plaintiff's home on October 30, 1987, is crucial to a number of disputed findings of fact. Defendant has objected to the use of plaintiff's deposition on two grounds: first, that there is insufficient evidence of plaintiff's inability to attend the trial and, second, that the deposition was noticed for discovery, not for use as evidence, and consequently contained testimony which would otherwise be excluded.
The evidence of plaintiff's disability is found in her answers to defendant's questions on pages 15-17 of her deposition, to the effect that she is a heavy smoker and has trouble breathing. On re-direct, at pages 72 and 73, in answer to defendant's questions, we find that ...
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