In re Littles
| Decision Date | 12 February 1988 |
| Docket Number | Adv. No. 87-02475,87-05695.,Bankruptcy No. 87-000925,87-023945 |
| Parties | In re Clara LITTLES, Debtor. Clara LITTLES, Plaintiff, v. Arnold R. LIEBERMAN, Defendant. In re Mary CROSSLEY, Debtor. Mary CROSSLEY, Plaintiff, v. Arnold R. LIEBERMAN, Defendant. |
| Court | United States Bankruptcy Courts. Third Circuit. U.S. Bankruptcy Court — Eastern District of Pennsylvania |
Mary Jeffrey, Margaret E. Taylor, Philadelphia, Pa., for debtor in Littles proceeding.
David A. Searles, Community Legal Services, Inc., Philadelphia, Pa., for debtor in Crossley proceeding.
Curtis P. Cheyney, III, Anne Matchulet, Philadelphia, Pa., for defendant.
Christine Shubert, Camden, N.J., Trustee in Littles case.
John Judge, Philadelphia, Pa., Trustee in Crossley case.
RECOMMENDED OPINION CONTAINING PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
We consider herein together two separate adversary proceedings instituted by Chapter 7 Debtors against the same defendant-attorney based upon the attorney's alleged dispatch of the same letter to recover damages under the federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (hereinafter referred to as "FDCPA"), and Pennsylvania state Debt Collection Trade Practices Regulations, 37 PA. CODE § 303.1, et seq. (hereinafter referred to as "DCTPR"). As we conclude that these matters are non-core and that the Defendant does not consent to our determining same, we have presented a Recommended Opinion, including Proposed Findings of Fact and Conclusions of Law, as required by 28 U.S.C. § 157(c)(1).
In Littles, we recommend denial of any relief to the Debtor-plaintiff because no evidence was presented to rebut the testimony of the Defendant and the manager of the office of a loan company on whose behalf the letter was dispatched that the loan company had sent out the letter itself, without the authority of the attorney. However, in Crossley, no comparable defense appears, and we therefore recommend that the attorney be adjudged liable for penalties totalling $500.00 under the FDCPA and the DCTPR.
The Debtors, widows aged 57 years (Littles) and 70 years (Crossley), filed Chapter 13 bankruptcy cases on January 6, 1987 (Littles), and May 15, 1987 (Crossley). Both cases were converted to Chapter 7 cases, Littles on August 20, 1987, and Crossley on December 4, 1987.
Littles instituted her adversary proceeding against ARNOLD R. LIEBERMAN, ESQUIRE, a practicing attorney (herein "the Defendant"), on March 12, 1987, and Crossley followed suit on June 12, 1987. Each proceeding followed a tortuous path prior to its submission to us for disposition.
In Littles, the Defendant filed a Motion to Dismiss the case, on the ground that it was not within our jurisdiction, on the basis of 28 U.S.C. § 157(b)(5), which requires that personal injury claims be tried in the district court. On July 7, 1987, we issued a brief Opinion, reported at 75 B.R. 240, denying the motion, on the ground that the modest statutory damage claims pursued by the Debtor were not within the scope of "personal injury tort and wrongful death claims" contemplated by 28 U.S.C. § 157(b)(5).
After several continuances by agreement of counsel, the matter was tried on September 8, 1987. The witnesses testifying were the Debtor, the Defendant, and Ronald Price, a manager of the office of the creditor employing the Defendant, Fleet Consumer Discount Company (hereinafter referred to as "Fleet"). When briefing was about to commence, Littles filed a motion to reopen the record to allow addition thereto of certain answers to Requests for Admission and Interrogatories. On November 25, 1987, we granted the motion with the caveat that the Defendant could present supplemental testimony at the hearing on December 15, 1987. Ultimately, the Defendant chose not to present further testimony and a briefing schedule was established which was completed on January 22, 1988.
The proceedings in the Crossley case were even more unusual. 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, Crossley filed a motion for a default judgment which the Defendant, suddenly springing into action, opposed and to which he attached a proposed Answer. We 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, in order that the Defendant could take the disposition of Crossley. This disposition took place on October 30, 1987, in Crossley's home, from which Crossley claimed, for medical reasons, she could not venture for the disposition. Just prior to trial, Crossley moved to admit the deposition transcript into the record in lieu of her live testimony, contending that she could not attend trial for medical reasons. On November 10, 1987, we granted that motion, subject to the Defendant's right to take a supplemental deposition of Crossley on or before November 30, 1987, and scheduled the remainder of the trial for December 15, 1987.
On the latter date, the Defendant, to the surprise of Crossley's counsel, failed to appear. We therefore continued the trial until January 6, 1988, allowing either party to subpoena the Defendant to appear thereat. After initially agreeing to produce the Defendant, his counsel withdrew this offer in a letter dispatched just prior to the New Year's weekend, and Crossley's counsel was unsuccessful in attempts to subpoena the Defendant thereafter. On January 6, 1988, the Defendant again failed to appear. At that time, in lieu of our offer to continue the matter again and direct the Defendant to appear, Crossley's counsel offered into evidence certain responses to discovery, a portion of the Littles transcript, and 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. All of the exhibits were admitted, the latter two over the Defendant's objection. Although we entered an Order contemplating receipt of the Crossley briefs coinciding with those prepared in Littles, the Defendant was thereafter granted a brief extension to make his submission in Crossley, and all filings were made by January 26, 1988.
Because we decide that neither proceeding is a core proceeding, we are obliged to submit proposed Findings of Fact and Conclusions of Law to the district court as to each case separately. We are including these Proposed Findings and Conclusions in the text of this "Recommended Opinion," which concludes with a Discussion of issues common to both cases.
Very truly yours /s/ Arnold R. Lieberman Arnold R. Lieberman, Esq. ARL:dl Date: 9-17-86 cc Manager: RON PRICE Phone No.: 592-1960
3. On September 24, 1986, Ronald Price of Fleet sent an even stronger letter to Littles, stating, inter alia, that it was suggested that she remove all of her personal property from the premises because she would be evicted in an impending foreclosure sale of her home.
4. Littles is a 57-year-old widow who attended school only through tenth grade in North Carolina and whose husband had recently expired in November, 1986. Littles testified that she believed that, as a result of these letters, Fleet was suing her and that she would lose her home. She testified that she "was very upset," cried, couldn't eat, couldn't sleep, lost eleven pounds in the next two or three months, and tried unsuccessfully to obtain financial assistance from her three children and a friend.
5. The Defendant testified that he had been a practicing lawyer for twenty-seven (27) years, having represented Fleet for ten (10) years. He further stated that he had represented several other loan companies in collection activities, wherein he had utilized the letter quoted in paragraph one for the past ten or twelve years. Finally, he testified that the letter had been prepared after consultation with attorneys from the office of Littles' counsel.
6. The Defendant also testified that the signature on the letter was not his, and that he had never authorized the dispatch of this letter to Littles.
7. The Defendant and Ronald Price both testified that, on one occasion, due to his own secretarial problems, the Defendant had come to the Fleet office with several copies of his letter to be sent to particular Fleet customers, not including Littles. Mr. Price opined that a Fleet employee, without authority to do so, had made an extra copy of the letter, signed the Defendant's name to it, and sent it to Littles.
8. Mr. Price stated that Fleet had utilized the letter in certain cases in the past with the Defendant's authority, but that Fleet had "overstepped its bounds" in sending...
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Crossley v. Lieberman
... ... 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 ... ...