Ruling from the bench in downtown Oakland, U.S. District Judge Claudia Wilken denied a motion by Libre by Nexus Inc. to dismiss the claim brought by three immigrants, finding they had adequately alleged the company is a “debt collector” under the Fair Debt Collection Practices Act.
Wilken, however, dismissed as time-barred a California English Translation Act claim that the Virginia-based company exploits the immigrants’ limited English skills and lures them into expensive post-release bond loans. But she granted them leave to amend to explain why the claim isn’t subject to a one-year statute of limitations.
“Even after they [the plaintiffs] got out of custody, they had almost a year to figure out the 1-page document was a lot shorter than the 21-page document,” and that they should have had the longer document translated into English sooner, Wilken said.
According to the plaintiffs, Libre negotiates leases for GPS ankle monitors with detainees in Spanish but forces them to sign a 21-page contract written in English, despite knowing they don’t understand the language.
The company gives them a 1-page document in Spanish that supposedly lists the agreement’s key terms, though the plaintiffs claim it fails to disclose some including a $420 monthly lease payment for an ankle monitor the complaint describes as a “heavy shackle” that forces the wearer to be tethered to an electrical outlet for hours each day for charging.
According to the June 2017 amended complaint filed by Honduran immigrants Juan Quintanilla Vasquez and Gabriela Pedromo Ortiz and Mexican national Victor Hugo Catalan Molin, Libre preys on detainees’ limited English and inexperience with bond companies to manipulate them into signing contracts with unfavorable terms, including a bond security payment of 20 percent and an $880 nonrefundable fee up front.
On a $10,000 bond, a client pays Libre about $9,000 in nonrefundable fees in the first year, the plaintiffs claim.
Libre “is only able to foist this one-sided deal on consumers because it engages in a systematic campaign of misrepresentation and omission with its indigent, Spanish-speaking clientele, who are under the duress of detention,” the plaintiffs say in their complaint.
On Tuesday, Libre’s attorney Michael Simmonds with Simmonds & Narita asked Wilken to toss the two claims in question as invalid, and send the remaining claims to arbitration.
Addressing the Fair Debt Collection Practices Act claim, Simmonds argued Libre isn’t a “debt collector” under the statute. To qualify as a debt collector, a business must either mainly collect its own debts or regularly collect debts owed to other companies.
Neither scenario applies to Libre, he said, because the company mainly leases ankle monitors and doesn’t collect debts on behalf of bond companies.
Moreover, he said, a company can’t be a debt collector unless the loan it’s collecting is in default, and none of the loans in question were in default.
Plaintiffs’ attorney Jesse Newmark with Centro Legal de La Raza countered that Libre was acting as a “middle man in terms of the monthly payments to securitize on behalf of the bond company” after arranging for the bond company to post bond.
He said he hasn’t seen the contracts to prove his theory because discovery has yet to happen, a remark that appeared to persuade Wilken into keeping the claim alive.
Immigrant detainees deemed to not pose a flight risk or a threat to public safety are allowed to go free on bond while awaiting their immigration hearing. But many detainees must secure third-party financing to pay the bonds, which can range up to $20,000.
The plaintiffs seek class certification, restitution, disgorgement and punitive damages. They are also suing under California’s Unfair Competition Law, the Consumers Legal Remedies Act and the Rosenthal Fair Debt Collection Practices Act.
Wilken said she will issue a written order.