The class claims that Encore Capital Group, Midland Funding, and Midland Credit Management work with the Suttell & Hammer law firm, faxing a boilerplate form to a “legal specialist” in Minnesota, who signs the affidavit before any supporting documents are attached.
“Encore Capitol Group (‘Encore Capitol’) has developed a proprietary, sophisticated, ‘system driven’ collection process based on the ‘predictive behavior’ of consumers (and state courts). In conjunction with its subsidiaries and ‘franchisee’ law firms (including the Suttell Law Firm) it engages in computer automated, high volume, state court litigation in the collection of distressed debt (purchased at pennies on the dollar).
“That predictive behavior results in a very high default rate of judgments of unproven cases or for inflated amounts: 1) because the filing of the collection lawsuit by an attorney implicitly misrepresents that the attorney has had meaningful involvement in developing and evaluation of the case against the consumer-debtor, 2) because consumer-debtors frequently default if it is made to appear that a creditor, represented by an attorney rather than a collection agency has sued them, and 3) because that state courts reviewing high volume filings of defaults and summary judgments will enter judgments if it appears on the surface that documentation supporting the debt has been properly attached to the default or summary judgment package. The debt collectors collecting purchased distressed debt have a significant hurdle to overcome in the collection of large portfolios of distress debt (much of it aged) using the state courts. Due to the nature of the purchased distressed debt, the high volumes, and automation the defendants are unable to meet the requirements of the rules of evidence of providing proof of the records of the debt without misleading the state courts and consumer debtors.
“Instead of providing actual admissible evidence of the proof required in a breach of contract lawsuit, the Encore defendants (with the knowledge of the Suttell attorney defendants) hire collection agency employees as ‘Robo-signers,’ according to the complaint. “The Robo-signers sign several hundred affidavits a day falsely claiming that they are a business records custodian with personal knowledge of the facts. They falsely claim in the affidavit knowledge of the assignment(s) of the debt, the amount of the debt, the interest rate, the default of the debt, the alleged credit card terms and conditions, and the record keeping procedures of every bank in America.
“It is made to appear to the state court judges that the debt records filed with the court were attached to the affidavit by the affiant. This is not true. The affidavits are signed in Minnesota by a Midland Credit Management (a licensed collection agency) employee. Only the two (2) page affidavit is shipped to the Suttell Law Firm in Bellevue Washington. A non-attorney Suttell employee sometime later, as needed, selects and attaches documents to the ‘business records affidavit’ to send to the court for filing whenever a default or summary judgment motion is required. The court is lead to believe that the affiant has authenticated and established the reliability of the records but the affiant does not even know what records will be later attached to the affidavit by the Suttell employees.” (Parentheses in complaint.)
The complaint adds: “The affidavit is printed on a printer at the desk of a randomly selected MCMI employee, employed in St. Cloud, Minnesota. The person selected to sign the affidavit is based upon when the affidavit comes off the printer and which printer rather than any personal knowledge of the affiant of the account being collected.”
The class claims that each “legal specialist” signs 100 to 400 affidavits a day. One specialist who swore she had personal knowledge that “the plaintiff’s predecessor in interest sold and assigned all right, title and interest” did not “have any personal knowledge of who the plaintiff, Midland Funding LLC’s predecessor in interest was or even know what a ‘predecessor in interest’ was, nor what it means to have ‘sold and assign all right title and interest,'” according to the complaint.
The class claims that Encore developed its business using a sophisticated process that predicts the behavior of consumers.
Defendant Midland Funding is wholly owned by defendant Midland Portfolio Service, which is owned by defendant Midland Credit Management, which is owned by defendant Encore Capitol Group, which is a publicly owned corporation that trades on the NASDAQ under the symbol ECPG, according to the complaint. All work out of the same address in San Diego.
Defendants are Mark Case, Malisa Gurule, Karen Hammer, Isaac Hammer and William Suttell are all attorneys in Washington state, and all are employees of Suttell & Hammer, the complaint states.
The class claims false affidavits were “served and filed in thousands of cases,” in violation of the Fair Debt Collection Practices Act, the Washington Consumer Protection Act and the Washington Collection Agency Act.
The class seeks treble damages, disgorgement of interest, service charges, attorneys’ fees, collection costs, delinquency charges or any other fees collected by the defendants, and injunctive relief.
The class is represented by Michael Kinkley of Spokane.
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