#23 Jan 18, 2012
SAW THIS ARTICLE ABOUT LAWYER KENNETH HILLER. HIS FIRM GOT FINED FOR BRINGING A FRIVOLOUS CASE.
'Frivolous' Claims in Debt Matter End in Sanctions for Law Firm
New York Law Journal
A former debt collector who allegedly attempted to goad another collector into violating the Fair Debt Collection Practices Act, and the Buffalo-area law firm that represented her, have been sharply criticized by a federal judge, who sanctioned the firm.
Western District Judge John T. Curtin said Lyneisha Ford and the Law Offices of Kenneth R. Hiller in Amherst, Erie County, "egregiously manipulated" the Fair Debt Collection Practices Act (FDCPA), "compelling the defense of frivolous claims and wasting the court's time and resources in an attempt to recover statutory damages."
He sanctioned the Hiller firm and directed the collection agency to document its costs and counsel fees.
Ford v. Principal Recovery Group, 09-cv-627-JTC, centers on a plaintiff who had worked for various collection agencies and received Fair Debt Collection Practices Act training, and a law firm that specializes in pursuing violations under the act.
Records show that after Ms. Ford failed to pay a $180 dental bill in 2007 the account was turned over to Principal Recovery Group. Ms. Ford ignored a collection letter from Principal and was then contacted twice by phone by the debt collector.
In the second conversation, which Ms. Ford partially taped, the debt collector suggested that if the debt was not cleared the debtor's wages could be garnished by the dentist. However, only the debt collector's portion of the conversation not Ms. Ford'swas recorded.
The lawsuit was predicated on the allegation that the caller from Principal did not identify herself as a debt collector during the initial conversation, that she falsely represented that the account had recently come to Principal's attention when it had been in the office for a year, and that the threat of garnishment was improper.
After depositions, when Ms. Ford admitted she did not remember whether the debt collector had properly identified herself, Principal demanded that the plaintiff withdraw her suit and threatened to seek sanctions if she did not. Ms. Ford dropped the portion of her claim alleging that the collector had not identified herself, but pursued the remainder of the action.
Judge Curtin said it "appears that [Ms. Ford] attempted to bait defendant into violating the FDCPA" and found that she and her counsel pursued an action they knew was baseless.
"[T]he court concludes that plaintiff's counsel should be responsible for the attorney's fees and costs associated with the defense of this action," Judge Curtin wrote.
Seth Andrews of the Hiller firm represented Ms. Ford. He said the firm would appeal the decision.
Steven M. Cohen of HoganWillig in Buffalo appeared for Principal Recovery.
"There was no merit to Ms. Ford's claim," Mr. Cohen said. "She was trying to scam the system, and there was a lawyer willing not only to condone that, but assist her with this frivolous lawsuit, and the judge stopped them dead in their tracks."
Mr. Cohen said counsel fees amount to roughly $56,000.
#24 Jan 22, 2012
I COULDN'T GET MY CALLS RETURNED EITHER.
IF THAT'S NOT BAD ENOUGH KEN HILLER MADE BAD CASE WHEN HE SCREWED UP MY CASE.
Non-Debtors May Be Called Repeatedly, Court Concludes
New York Law Journal
Agreeing with several federal courts and disagreeing with others, Western District Chief Judge William M. Skretny has held that the Telephone Consumer Protection Act does not bar debt collectors from contacting people who are not in debt.
The issue that has divided federal courts is whether the act, a privacy statute restricting unsolicited and automated phone calls and which does not apply to debt collectors contacting debtors, is applicable when a collection agency repeatedly contacts someone other than the debtor.
In this case, Franasiak v. Palisades Collection, 09-cv-835S, a collection agency made repeated automated calls to the plaintiff's residence over a seven-month period about a debt owed by his daughter.
Records show that John M. Franasiak of Erie County repeatedly told Palisades Collection that he was not the debtor and that the debtor did not live with him. Eventually, Mr. Franasiak sent Palisades a cease-and-desist letter, which was ignored, and he continued receiving several calls a week. Finally, he filed an action under the Telephone Consumer Protection Act.
Palisades moved for summary judgment before Judge Skretny, arguing, accurately, that debt collection calls are exempt from the act. But the question, which has been litigated in other courts with mixed results, was whether the exemption applies when the call made to collect a debt is directed to someone who is not the debtor.
In February, Western District Judge John T. Curtin addressed the question in Santino v. NCO Fin. Sys., 09-cv-982-JTC, which involved calls to individuals who did not even know the debtor.
While Judge Curtin said in Santino that "common sense" would favor the plaintiff, judicial deference to the Federal Communication Commission's authority dictated a finding for the debt collector.
Similarly, Judge Skretny held for the defendant collection agency, finding that the FCC has not distinguished between calls made to debtors and nondebtors in applying an exemption to the act. The FCC has specifically exempted from the Telephone Consumer Protection Act calls resulting from an "established business relationship," and held that "all" debt collection activities involve such a relationship.
"It is for the FCC, and not this Court, to determine whether a resident's privacy rights are adversely affected by seemingly intrusive phone calls by prerecorded messages," Judge Skretny said. "Although it is this Court's opinion that such calls, when they are made to nondebtors, do adversely affect the individual's privacy interests, the FCC has found otherwise. Were this Court to [hold for the plaintiff] it would usurp the decision-making power Congress has properly left to another body, in this case the FCC."
Several courts have addressed the same issue, with differing results.
In 2006, a judge in the Eastern District of Pennsylvania in Watson v. NCO Group, 462 F. Supp 2d 641, concluded that a "non-debtor's rights are in fact violated when he is subjected to repeated annoying and abusive collection calls that he remains powerless to stop."
But recent opinions in the Northern District of Alabama, the Eastern District of Michigan and the U.S. Court of Appeals for the Eleventh Circuit have come to the opposite conclusion, generally because the FCC determined that "all" debt collection matters are exempt without drawing a distinction between debtors and nondebtors.
Kenneth R. Hiller and Kimberly T. Irving of Amherst, Erie County, represented the plaintiff.
The collection agency was represented by Brian C. Shartle of Sessions, Fishman, Nathan & Israel of Metairie, La., and Michael Del Valle of the Sessions' firm's office in Amherst.
#25 Mar 17, 2012
Not has bad as the Jeffery Freedman attorney office. They're worse.
#26 Jun 18, 2014
If anyone out there thinks the Bar Association will do anything to protect your rights you are very wrong. They are "hired,paid for and paid by the lawyers themselves" and do nothing for you,nothing at all. They may on occasion go after one or two small lawyers but never the big guys,or for the oh so common lack of attention (given your case) here in WNY. Most lawyers are lazy.lie and are completely unethical. And they go after the big bucks before they even think about calling you. Those were almost the exact words (above) told to me by one of their managers,then she went around and black balled my name to other lawyers,which is a common practice.
#27 Jun 18, 2014
Tbird collected food stamps during the blizzard of 1977
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