Crossley v. Lieberman

• Decision Date: 23 January 1989
• Docket Number: No. 88-1611,88-1611
• Citation: 868 F.2d 566
• Parties: 27 Fed. R. Evid. Serv. 544 Mary CROSSLEY v. Arnold R. LIEBERMAN, Appellant. . Submitted Under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 566

868 F.2d 566

27 Fed. R. Evid. Serv. 544

Mary CROSSLEY v. Arnold R. LIEBERMAN, Appellant.

No. 88-1611.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit

Rule 12(6) Jan. 23, 1989.

Decided Feb. 16, 1989.

Curtis P. Cheyney, III, Swartz, Campbell & Detweiler, Philadelphia, Pa., for appellant.

David A. Searles, Community Legal Services, Inc., Philadelphia, Pa., for appellee.

Before GIBBONS, Chief Judge, and SEITZ and GREENBERG, Circuit Judges.

OPINION OF THE COURT

GIBBONS, Chief Judge:

Arnold Lieberman, an attorney, appeals from a judgment for $2,000 against him in favor of Mary Crossley in Crossley's action under the Fair Debt Collection Practices Act. 15 U.S.C. Sec. 1692 et seq. The dispute arises out of a letter sent by Lieberman seeking payment of $297.79 owed by Crossley to Fleet Consumers Discount Company (Fleet), secured by a mortgage on Crossley's home. Jurisdiction is based on 28 U.S.C. Sec. 157(c)(1).

Lieberman's August 4, 1986 letter to Crossley is as follows:

MARY CROSSLEY

837 ALMOND STREET

PHILADELPHIA

DATE: AUG. 4, 1986

PLAINTIFF: FLEET CDC

ACCOUNT # 26486721

AMOUNT DUE 297.79

Dear Sir and Madam:

The above matter has been referred to me for collection. I am obligated to demand immediate payment of the full amount of the plaintiff's damages and costs as stated above.

Unless I receive payment in full within one week from the date of this letter, I will be compelled to proceed with suit against you. This can result in the listing of your property, either Real Estate or Personalty, for forced Sale by the Sheriff, after appropriate legal proceedings have been concluded.

Such action will result in additional expense to you, for the Court fees and Sheriff's costs.

Full payment should be in my hands within one week. You may telephone me for additional information.

Very truly yours,

s/ ARNOLD R. LIEBERMAN

ARNOLD R. LIEBERMAN, ESQ.

Crossley had not received any prior demand from Fleet. She was then a sixty-eight year old widow who had resided in her home since 1940. She was then employed as a noon-time aid for the Philadelphia School Board. Upon receipt of the letter, Crossley telephoned the number on the letterhead and spoke to a man she believed to be Lieberman. When she said she could not pay the entire bill, the man responded that she should sell her house and become a "bag lady." Interpreting the letter as a threat to sell her home, she reacted in panic. She quit her part-time job with the School Board so that she could cash in her modest pension contributions of approximately $800 in order to pay off the $297.79 debt.

On May 15, 1987, Crossley filed an action to adjust her debts under Chapter 13 of the Bankruptcy Act. 11 U.S.C. Sec. 1301 et seq. An adversary proceeding was then filed on her behalf under the Fair Debt Collection Practices Act. 15 U.S.C. Sec. 1692k. Lieberman was duly served, but did not answer. Crossley moved on July 22, 1987, for a default judgment. A default was entered against Lieberman and a hearing on damages was scheduled for August 12, 1987. On August 25, 1987, Lieberman finally responded, opposing the entry of a default judgment, and the bankruptcy court vacated the default. Trial was scheduled for October 13, 1987, but it was postponed in order to permit Lieberman to take Crossley's deposition at her home. She was deposed on October 30, 1987, and on November 5, 1987, her attorney moved to admit the transcript of that deposition in evidence in lieu of her live testimony because her poor health precluded her attendance at trial. Lieberman objected, but the motion was granted, subject to the right of Lieberman to take a supplemental deposition of Crossley on or before November 30, 1987. The trial was continued until December 15, 1987. Lieberman did not take a supplemental deposition and did not appear for the December 15, 1987 trial date. The trial was then continued until January 6, 1988. Lieberman's counsel first agreed to produce him at trial, but just prior to the New Year's weekend withdrew that offer. Crossley's counsel made unsuccessful efforts to subpoena Lieberman. On January 6, 1988, Lieberman did not appear.

The trial went forward on January 6, 1988. Crossley's counsel put in evidence her deposition, certain discovery responses, and Lieberman's testimony in Littles v. Lieberman, Bankruptcy No. 87-00092S, Adversary No. 87-0247S, and a certified record of the Philadelphia Court of Common Pleas reflecting Lieberman's debt collection activities. On February 2, 1988, the bankruptcy court proposed findings of fact and conclusions of law recommending judgment in Crossley's favor for $500. Lieberman filed objections to the recommended findings. The district court modified the bankruptcy court's findings of fact and conclusions of law, increasing the award to $2,000. 90 B.R. 682 (1988). This appeal followed.

A. The Prothonotary's Record

Lieberman contends that the bankruptcy court erred in admitting the certified record of the Philadelphia Court of Common Pleas because the record was not properly authenticated under Fed.R.Evid. 902. This contention is groundless. The last page of the exhibit contains the raised seal of the Philadelphia Court of Common Pleas and the signature of the prothonotary. Thus the document is self-authenticating. Fed.R.Evid. 902(1), (4). As such it is an admissible public record. Fed.R.Evid. 1005. See also Fed.R.Evid. 803(6), (8).

B. The Crossley Deposition

Lieberman contends that the court erred in admitting Crossley's deposition pursuant to Fed.R.Civ.P. 32(a)(3)(C). He contends that there is insufficient evidence of her disability to permit use of the deposition under the rule.

The district court found evidence of Crossley's disability in her answers to defendant's questions on pages fifteen through seventeen of her deposition. This testimony referred to the fact that she was a heavy smoker and had trouble breathing. Additionally, pages seventy-two through seventy-three of the deposition showed that she had no car available for her use. Lieberman counters this point by arguing the existence of public transportation. Such an argument, however, belittles the extreme and often arduous effort of an elderly, infirmed individual in using such transportation. Lieberman also argues that Crossley was able to go to her attorney's office. This visit occurred, however, in August 1986. The trial was in December 1987, which was over a year later. The district court contemplated the probable deterioration of Crossley's physical condition in that time. Lieberman also describes Crossley's part-time position as a noon-time aid to attempt to convince us of Crossley's adequate mobility. Again, we must examine the time frame. She quit her job in August 1986. The trial was in December 1987. Any physical deterioration would probably have precluded Crossley from supervising "young children during their most active period in school." Lieberman offered no evidence to counter Crossley's inability to attend trial.

Lieberman asserts prejudice because he took Crossley's deposition solely for discovery purposes. He contends that he was deprived of the opportunity to cross-examine Crossley. This contention is baseless because Lieberman was given very broad latitude in questioning Crossley. Additionally, the bankruptcy court gave Lieberman a second opportunity to depose Crossley. He never exercised this option. The district court opined that the probative value of Crossley's deposition outweighed any prejudice to Lieberman. This ruling was not an abuse of discretion. Fed.R.Evid. 403.

C. Lieberman is a Debt Collector

Lieberman argues that he is not a debt collector as defined by 15 U.S.C. Sec. 1692(a). His argument is meritless. The statute as enacted on September 20, 1977, contained an exception for attorneys collecting debts on behalf of clients. Fair Debt Collection Practices Act of 1977, Pub.L. No. 95-109, 91 Stat. 874 (1977) (codified at 15 U.S.C. Sec. 1692 et seq. (1982)). Congress deleted that exception, however, in 1986. Fair Debt Collection Practices Act, Amendment, Pub.L. No. 99-361, 100 Stat. 768 (1986) (codified as amended 15 U.S.C.A. Sec. 1692 et seq. (West Supp.1988)). The Act originally exempted attorneys "on the basis that attorneys were only incidentally involved in debt collection activities." H.Rep. No. 405, 99th Cong.2d Sess. (1985), reprinted in 1986 U.S.Code Cong. & Ad.News 1752, 1759. Data illustrated that by 1985, more lawyers were engaged in the debt collection industry than non-attorney debt collectors. ¹ Additionally, to procure clients, many attorneys were advertising their exemption from the FDCPA as an advantage to creditors. Id. at 1756. Repeal of the exemption thus requires attorneys to comport with the standards of conduct that is required of lay debt collectors.

A "debt collector" is defined by the amended act as:

any person who uses any instrumentality 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 or indirectly, debts owed or due or asserted to be owed or due another.

15 U.S.C.A. Sec. 1692a(6) (West Supp. 1982 & 1988). A leading commentator on the statute observes:

Both the legislative history of this amendment and the case law regarding similar provisions in the Federal Consumer Credit Protection Act demonstrates that any attorney who engages in collection activities more than a handful of times per year must comply with the FDCPA. Both sides in the floor debate conceded that the amendment would make the act apply not only to those lawyers who have collection practices but also to those who collect on an occasional basis and the small law firm which collects debts incidentally to the general practice of law.

R. Hobbs, Attorneys Must Now Comply With Fair Debt Collection Law, X Pa.J.L.Rptr., No. 46, 3 (Nov. 21, 1987).

The regularity of Lieberman's debt...