Mann Bracken Watch

Mann Bracken: Lively Debate!

2011-12-01T10:30:00.000-08:00

This article includes a lively debate on the legalities of debt collection, and it should come as no surprise that Mann Bracken comes up…

Scott Kramer: Choose Your Words Carefully!

2011-12-01T10:12:00.000-08:00

Here's a news story from June of 2010 (note highlighted section):

"Several lawyers who used to work at the now-defunct Mann Bracken LLP debt-collection law firm have formed a new collection firm.

Mann Bracken, which operated nationally but has a major office in Rockville, collapsed in January, producing chaos for debtors, creditors and the court system and prompting state regulators to take action against the firm. Mann Bracken is now in receivership.

The new firm is called Kramer, Meggison & Taylor LLC and has offices in Rockville and Atlanta.

“There’s no resurrection of Mann Bracken,” Rockville-based partner Scott Kramer said. The new firm has “no association with Mann Bracken, and just, several lawyers who worked together in the past formed a new firm to resurrect their careers.”

The firm has been operating for about two months and is “in its infancy,” Kramer said.

Meanwhile, Mann Bracken receiver Cheryl E. Rose said she is busy pursuing the defunct firm’s assets, processing consumers’ payments and settling Fair Debt Collection Practices Act claims filed against Mann Bracken. She said she is also considering suing over the firm’s demise, though she would not provide specifics.

“We’re pursuing litigation to see if there are parties that might be responsible for what happened to Mann Bracken,” she said.

Mann Bracken has attributed its collapse to its affiliated support-services company, Axiant LLC, filing for bankruptcy and preparing to liquidate its assets. Axiant provided staffing, phone and computer services to Mann Bracken.

The firm, which once operated in 24 states and employed hundreds of people, also faced other troubles.

Last year, Mann Bracken was caught in the middle of a dispute between Minnesota regulators and the Minneapolis-based National Arbitration Forum, which resolves disputes between consumers and creditors — including Mann Bracken.

The Minnesota attorney general alleged that NAF and Mann Bracken shared common ownership, and charged that this was a massive conflict of interest. NAF settled that case without admitting the allegations, but agreed to stop arbitrating collection disputes.

Maryland filed a cease-and-desist order against Mann Bracken in January, when the firm stopped answering calls and pursuing its cases. State regulators are pursuing an agreement with the receiver, said Assistant Attorney General W. Thomas Lawrie."

Kramer's new firm is Kramer, Linkie, and Taylor. Matthew Linkie and Keith Taylor are former Mann Bracken attorneys. As is shown here, W. Christopher Bracken, the "Bracken" in Mann Bracken, is also a partner in Kramer, Linkie and Taylor.

No association with Mann Bracken?

Kramer, Linkie, and Taylor: Mann Bracken Refugees!

2011-11-03T09:25:00.000-07:00

Scott Kramer, Matthew Linkie and Keith Taylor, formerly of Mann Bracken, have formed a collections law firm, Kramer, Linkie and Taylor.

It seems some previous undertakings did not quite work out…

Matthew Linkie is a notorious character, he offered a pittance to a refugee after the refugee's cell phone was bombarded, mistakenly and inappropriately, by Mann Bracken.

Treat this law firm like any other collection agency. Do not talk to them on the phone, insist on written communications and demand debt validation!

Why, one wonders, were Melissa Meggison and Christopher Diwan not invited to join the firm?

Mann Bracken: Payment Site is Down!

2011-10-22T06:19:00.000-07:00

For some time after the demise of Mann Bracken, payments were still being accepted and processed.

Now, the site formerly used to accept some of the payments (others had been mailed to Mann Bracken's "mothership" in Rockville, MD) is down.

Christopher James Diwan: His Misdeeds at Mann Bracken

2011-10-19T07:41:00.000-07:00

Christopher James Diwan was an associate attorney at the now defunct collection law firm, Mann Bracken.

While there, he exhibited spectacular levels of incompetence and dishonesty.

For example, here's a letter Mann Bracken sent an alleged debtor.

This resulted in a complaint to the Better Business Bureau. Diwan responded, claiming Mann Bracken had no idea who the complainant was.The letter from Mann Bracken proved to be his (and eventually Mann Bracken's) undoing.

What's the explanation?

One possibility is that Chris Diwan is just inept and incompetent.

Another is that he was part of the overall scheme of shady dealings at Mann Bracken.

Either way, you do not need to retain Christopher Diwan as your attorney. If you need an attorney in one of his purported areas of expertise, call your local Bar Association for a referral, they will get you a real lawyer, not someone like Chris Diwan!

Connell Loftus: A Condemnation!

2011-09-22T00:00:00.000-07:00

Connell Loftus has written an article that is a must read!

Loftus, through means not yet divulged, became an owner of Mann-Bracken, but his dreams of untold riches through the fraudulent mechanism of the National Arbitration Forum came to and end when exposed.

Now, he is undoubtedly in some sort of recovery mode.

The Mann Bracken attorneys are scattered like scraps of yesterday's newspaper, some working from home, some setting up small debt collection firms, some lucky enough to join other debt collection firms.

Any level of participation in Mann Bracken is a mark of avarice and malice.

In an ideal world, Loftus and the other Mann Bracken lawyers (Melissa Meggison, Keith Taylor, Scott Kramer, Matthew Linkie, and Chris Diwan) would be stripped of their law licenses and left to spend the rest of their lives to ponder the harassment and abuse they were responsible for.

KMT Law: Dead In The Water?

2011-09-14T09:28:00.000-07:00

KMT Law, had, for some time, been seen as a possible successor to Mann Bracken.

It would seem that many of the people responsible for the demise of Mann Bracken (Scott Kramer, Melissa Meggison, and Keith Taylor) have been unable to get KMT Law off the ground.

It is not certain what role, if any, was played by Chris Diwan, Matthew Linkie, Chris Bracken, Doug Mann, James Branton, or Connell Loftus.

Chris Diwan, Former Mann Bracken Attorney, Rated "DO NOT RETAIN"

2011-04-08T08:11:00.000-07:00

Chris Diwan exhibited spectacular levels of incompetence while at Mann Bracken.

As a result, the maintainers of this blog have given Christopher James Diwan the DO NOT RETAIN rating. A call to your local Bar Association will result in a much more acceptable alternative to this bungler.

Midland Drops Maryland Mann Bracken Cases

2011-03-20T11:39:00.000-07:00

March 17, 2011: Midland Funding LLC will drop more than 10,000 debt-collection cases against Maryland consumers under a class action settlement approved in Baltimore federal court.

The dismissed claims, mostly for unpaid credit card debt that Midland bought from creditors, total at least $10.2 million, according to a court document filed Wednesday by the plaintiffs.

Consumers filed suit against Midland, a buyer and collector of debt, in September 2009, alleging "prolonged, illegal, and systematic abuse of thousands of Maryland residents." Plaintiffs alleged that Midland was operating as a debt collector without a state license, in violation of state and federal law, said Peter A. Holland, the attorney for class members. The settlement was reached in June and approved Wednesday by U.S. District Judge Richard D. Bennett.

Holland, principal of the Holland Law Firm in Annapolis, said the debt-collection cases were "an albatross" for the plaintiffs.

"It can impact your ability to get a job … to get an apartment … to get a loan," he said.

Of the settlement's approval, Holland said: "To get this type of relief in this economy, it's an extraordinary thing. It's a great day for a lot of consumers in Maryland."

Midland is a subsidiary of Encore Capital Group, a publicly traded company based in San Diego that buys defaulted consumer loans from banks, credit unions and utilities.

Encore Capital Group officials were pleased, the company said in a statement. "In the settlement of this class action lawsuit, the court made no finding of any wrongdoing by either Encore or Midland and there was no admission of liability."

Midland had been a client of the Mann Bracken law firm in Rockville, which handled debt-collection lawsuits before shutting down abruptly last year. Lawsuits and regulators accused the firm of failing to comply with debt-collection laws and harassing borrowers.

Besides dropping the consumer debt-collection cases, Midland agreed not to refile the lawsuits or to sell the accounts in which debts were owed. However, the settlement allows Midland to contact debtors for payment as long as it follows debt-collection laws. Holland said Midland is now licensed to collect debts in Maryland.

Mann Bracken Vacates "Mothership" Premises

2010-11-04T10:22:00.001-07:00

November 4, 2010: Mann Bracken has vacated the 74,500 square feet it was leasing at 702 King Farm Drive, Rockville, MD.

KMT Law

2010-04-24T13:02:00.000-07:00

More Mann Bracken lawyers are setting up shop.

KMT Law is Scott Kramer, Melissa Meggison, Keith Taylor, Matthew Linkie, and W. Christopher Bracken.

All of them were with Mann Bracken before its demise.

They are at: Building 4, Suite 205, 3565 Piedmont Rd. NE, Atlanta, GA 30305. (888) 511-0894, fax is (404) 921-9129. Their website, www.kmtlaw.com, is not fully operational.

It looks like Chris Bracken's "home office" approach did not last long.

Linkie was in Maryland. He was in the news, briefly. It seemed a refugee's cell phone number was in Mann Bracken's database. The continual calls exhausted the minutes. The refugee had to walk to a part time job after that, and developed a serious foot infection. Mann Bracken, through Linkie, settled for under $1,000. They probably had bar tabs bigger than that back in the day.

The firm will apparently engage in debt collection work. It is not known if they will use the same unprofessional methods as their apparent predecessor, Mann Bracken.

Obviously, anyone and everyone should be wary of this firm!

Chris Diwan: Home Alone?

2010-04-22T08:19:00.000-07:00

Chris Diwan, like other lawyers formerly with Mann Bracken, is unemployed.

He has had no luck in being hired by a law firm, so he has set up his own:

Diwan Law LLC
1178 Larch Lane
Decatur, GA 30033
(404) 635-6883.

Christopher Diwan claims to offer services in creditors' and debtors' rights, criminal defense, and "lemon" law.

Note that this is a residence, not an office.

Diwan has an interesting history.

On one occasion, he advised the Better Business Bureau (BBB) that Mann Bracken had never written to the person complaining about them.

Diwan-and Mann Bracken-did not look good when the Better Business Bureau confronted him with the correspondence from Mann Bracken!

This has happened more than once.

Based on his track record, Diwan does not seem to be a very good lawyer.

Doreen Hoffman Joins Trott & Trott

2010-04-21T06:25:00.000-07:00

Now that Mann Bracken has collapsed, its attorneys are looking for work.

Doreen Hoffman has joined Trott & Trott. Will they be the next to fail?

Chris Bracken - Current Contact Details

2010-01-07T09:55:00.000-08:00

Courtesy of the Georgia Bar Association:

Mr. W. Christopher Bracken, III
3516 Paces Ferry Circle
Smyrna, GA 30080
(404) 275-8650
brackenwc@gmail.com

The Continuing Failure of Mann Bracken

2010-01-02T10:20:00.001-08:00

The failure continues. Many of Mann Bracken's web pages now go to "holding pages" - but the domains are not yet available (who would want them?).

James Branton also appears to be practicing law from home.

Mann Bracken is causing holiday pandemonium. Lawsuits are being dismissed and, when a Mann Bracken phone is still working, the message is to call the creditor! Many creditors appear to have been unaware of Mann Bracken's demise, and do not know what to do.

Note that Mann Bracken has not entered bankruptcy and is still in good standing. That means they can still be sued…

Mann Bracken is GONE!!

2009-12-29T08:44:00.001-08:00

Mann Bracken is gone.

Axiant is in bankruptcy, and NCO is no longer interested in purchasing them.

Mann Bracken 800 numbers ring once or twice and then cut off. Some numbers are out of service altogether.

W. Chris Bracken and Doug Mann appear to be practicing law from their homes.

There is a lesson to be learned here for other collection agencies. You could be next!

Jerome Yalon: Concord, CA

2009-09-21T05:20:00.000-07:00

Jerome Michael Yalon
Mann Bracken LLC
2325 Clayton Rd
Concord, CA 94520

Phone Number: (925) 969-1900
Fax Number: (925) 969-1802

Email: yalonj@mannbracken.com

Only time will tell if he is as truthful as Chris Diwan, and how his politics compare to those of Connell Loftus! It is pretty clear that he's a holdover from Eskanos Adler.

Connell Loftus: Mission Accomplished, You Betcha!

2009-09-20T09:53:00.001-07:00

Connell Loftus seems to be one of the new owners of Mann Bracken after its merger with Wolpoff Abramson and Esksanos Adler and the creation of Axiant.

We thought you would like to know that Loftus supported both the Bush/Cheney campaign in 2004 and the McCain/Palin campaign in 2008.

This probably means that Loftus supports torture, widespread surveillance, warrantless searches, racial profiling, the bailouts, book burning, hunting from helicopters, and Saudi Arabia.

This probably means that Loftus is opposed to abortion, free speech, privacy, oversight of the financial industry, and the U.S. Constitution.

Given the way Mann Bracken behaves, is anyone surprised?

Chris Diwan of Mann Bracken: Hapless Bungler or Habitual Liar?

2009-09-19T07:07:00.000-07:00

In this lawsuit, we see something all too common: a collection agency blithely ignoring a consumer's Debt Validation Letter.

In this case, it was Mann Bracken, but GC Services has been known to do this as well, especially in conjunction with its "cash cow" account with American Express.

In this case, the consumer took the added, and prudent, step of making sure a return receipt was obtained, proving that Mann Bracken received the letter.

Another cause of concern is the fact that Chris Diwan, an associate attorney with Mann Bracken has this disturbing habit of claiming Mann Bracken does not have certain records, and then being proven wrong.

What's going on? Is Mann Bracken merely incompetent, or are they liars?

In either case, the law is being broken. In addition, as lawyers, Mann Bracken have certain obligations regarding recordkeeping, those are clearly not being met.

What happens when Mann Bracken ends up in court? They settle out of court.

Mann Bracken: Martindale Listing is OUT OF DATE

2009-08-20T06:21:00.001-07:00

The current listing for Mann Bracken on Martindale does not list Connell Loftus (one of the new owners) or associate Matthew Linkie (in Rockville, MD).

Don't worry Chris "we have no such person" and "enemy of Corporate180" Diwan is there, as is Scott Kramer.

Is this because they still haven't fixed things after the merger, they just don't care, or money is so tight they can't afford to update the listing?

Mann Bracken and JP Morgan Chase: Up to Something?

2009-08-17T10:40:00.000-07:00

Take a look at this.

You will see that Chase is taking up to FOUR MONTHS to post payments.

In the meantime, accounts go delinquent (but Chase has the money). Some delinquent accounts get turned over to Mann Bracken for collection.

We all know Mann Bracken won't listen, and that Chris Diwan will deny everything.

The solution: complaints and lawsuits. Complaints as in lawsuits against the Mann Bracken attorneys and small claims lawsuits against Chase. Name Janet Gigeous in your lawsuit!

The Baltimore Sun Exposes Mann Bracken "component" Wolpoff Abramson

2009-08-14T15:39:00.000-07:00

December 2008: Reporting and Analysis by the Baltimore Sun

Every Wednesday at noon, debt collection lawyers take their seats behind a thick wooden table in a downtown Baltimore courtroom for a ritual they call the "rocket docket."

It's one way officials at the city District Court try to unclog a backlog of consumer debt lawsuits, including thousands filed by hospitals over unpaid bills.

Lawyers call up debtors one at a time to work out payment plans in rapid, on-the-spot settlements. Other days, lawyers haggle with debtors in the courthouse hallways. When cases go to judges, hospitals typically win after hearings that last a few minutes or less.

Nearly one-third of the 132,000 lawsuits that Maryland hospitals have filed against patients in the past five years over unpaid bills have been filed in the city District Court, which serves an area where many debtors are "living on the margins," as University of Maryland law professor and former Legal Aid lawyer Michael Millemann puts it.

These lawsuits have played out even though hospitals' costs of unpaid bills and provision of free care to the poor are supposed to be covered by the rates paid by all patients, under Maryland's unique rate-setting system. Some of the hospitals that have filed the most lawsuits have received millions of surplus dollars from the payment system.

Maryland hospitals have won at least $100million in judgments against patients in the past five years and placed liens on at least 8,000 homes across the state, despite national hospital industry guidelines that caution against the wholesale use of that practice, an investigation by The Baltimore Sun found.

Some hospitals have won judgments against patients covered by Medicaid for bills the giant government health plans didn't pay, despite a Maryland law outlawing that, The Sun found in sampling more than 200 court files. Hundreds of patients have filed complaints with state regulators over billing issues, including allegations that hospitals tried to collect amounts beyond what they agreed to accept under insurance company contracts by going directly after patients.

And some hospitals have sued patients three or more years after their stays ended, raising questions about whether the statute of limitations had expired, The Sun found.

The court processes can overwhelm debtors, who rarely have lawyers to assist them and often don't even try to defend themselves. At the "rocket docket" and other settlement forums, patients negotiating against hospital lawyers "have no comprehension of the potential defenses that they may have," said Millemann, also a former chief of the civil division of the Maryland attorney general's office.

Daniel L. Hatcher, an assistant professor at the University of Baltimore School of Law, said debt collection cases of all types are "completely overwhelming" the district courts. "Even the best judge won't have the resources to give each case justice," he said.

Court records don't make clear how much of the judgments were actually collected by the hospitals. It's also not possible to know whether hospitals are suing the same patients whose debts they've already written off as part of the rate-setting system, because state regulators do not require them to itemize write-offs. The hospitals insist that they don't collect debts twice.

The hospital industry argues that state regulators expect them to pursue those who can pay their bills, so those costs don't get passed on to all patients through higher rates. But some hospitals have filed thousands of lawsuits while others of similar size have filed just a few hundred. Maryland law, unlike the law in some other states, imposes few controls on when and how hospitals can sue patients.

Carmela Coyle, president of the Maryland Hospital Association, said its members only press people with the ability to pay. That's not always easy to determine, she said, especially when patients or their families don't share full details of their finances.

Though she said the number of suits was small compared to the total number of patients hospitals treat, she said: "I'm sure you'll find examples of bad practices. We won't defend those."

One collection attorney, while saying that most debts pursued are legitimate, conceded that mistakes occur. Patients can face a lawsuit because a hospital "failed to fill out insurance forms correctly," said Bruce H. Cherkis, a Gaithersburg lawyer. "There are a lot of ways to fall through the cracks."

Robert B. Murray, who heads the state Health Services Cost Review Commission, said the volume of lawsuits against patients is "troubling," especially since some hospitals appear to sue much more than others.

"We hope and expect that hospitals are charitable institutions and they know where to draw the line," Murray said.

Lawyers specialize

The lawsuits have brought in money not just for the hospitals, but also a cadre of specialized law firms that handled the bulk of cases filed by Maryland hospitals against patients over the past five years.

The University of Maryland Medical System paid Towson-based Bloom and Associates more than $1.6 million in 2006 to handle collections cases, according to Internal Revenue Service records. Some firms accept a percentage of the recovery instead of being paid an hourly rate.

The firms file so many cases that they can profitably handle ones seeking very small amounts. Some lawsuits are filed over as little as $30; in many of these smaller cases, the amount of interest and court costs can exceed the amount of the debt.

One of the largest firms handling hospital debt cases is Wolpoff and Abramson, which from its start in Silver Spring more than three decades ago grew into a collections behemoth with dozens of offices and affiliates across the country.

In Maryland, Wolpoff attorneys filed more than 11,000 lawsuits against patients during the past five years on behalf of the Johns Hopkins Hospital and Johns Hopkins Bayview Medical Center, court data show. Its other clients include Sinai Hospital of Baltimore.

The firm - which went through a merger in July and is now known as Mann Bracken LLC - has faced more than 200 federal court lawsuits since the start of 2005 alleging violations of fair credit and debt collection laws, mostly over credit card or other bank debt.

Among the 44 such lawsuits against the firm this year are several alleging high-pressure and deceptive collection activities and filing of lawsuits after the statute of limitations had expired. The firm has denied the accusations, and most of the cases are pending.Others were settled confidentially.

Nickia Kelly encountered Wolpoff lawyer Rahsaan J. Dickerson, representing the Johns Hopkins Hospital, at a "rocket docket" session in October. The hospital had sued Kelly over a $1,102 charge from an emergency room visit more than four years ago.

Dressed in jeans and a dark stenciled sweat shirt, Kelly was hoping to avoid a near-certain court judgment and steep interest charges on top of the debt. She stepped up to the table and sat down to face off with the pinstripe-suited lawyer and his paralegal.

Tense at points, their brief meeting ended when Kelly agreed to pay $100 a month. The hospital, in turn, wouldn't press Kelly for nearly $600 in interest and other fees it had sought.

"I'm just getting slammed," said Kelly, a Baltimore International College culinary student, as she hurriedly left the downtown courthouse on Fayette Street. "What can you do?"

What Kelly didn't realize, without having a lawyer to help her, is that she might have had a defense - that Maryland has a three-year statute of limitations on debt. Hopkins filed suit against her in March 2008, more than 3 1/2 years after she was treated. Statute-of-limitation cases can sometimes be less than clear-cut, however, because the clock can restart if a debtor has any contact with a debt collection agent.

Kelly said she had no idea that debts can expire after three years until a reporter told her this month. "Are you serious? I just sent in my first payment," said Kelly, who said she has put past trouble with the law behind her and plans to manage a restaurant some day.

Dickerson referred questions to Mann Bracken's Rockville office, but nobody there would agree to an interview. Johns Hopkins officials declined comment.

Records show that in cases filed by the Wolpoff firm, hospitals routinely seek to add interest at the legal maximum of 12 percent a year on judgments, starting 60 days after the patient was discharged. That is legal under a Maryland law that applies to hospitals. But the practice is criticized as unnecessarily aggressive even by some other debt collection lawyers. The Maryland Constitution sets interest rates at 6 percent for most debts, but hospital debts are exempt.

In a suit filed in April 2005 against Edward Brashears, a computer programmer at the Social Security Administration, Sinai Hospital through Wolpoff and Abramson demanded 12 percent interest dating back more than three years. The hospital had actually sued Brashears twice before, but failed to serve Brashears both times, so the cases were dismissed. By the time the third suit was filed, Brashears had died of colon cancer, court records show.

"They kept sending statements here, and I sent them the death certificate to let them know I can't do anything about it," said James Brashears, the dead man's brother.

John M. Colmers, secretary of the state Department of Health and Mental Hygiene and a former executive director of the hospital rate-setting commission, called it "quite disturbing" for hospitals to seek pre-judgment interest. "The commission should look into that," Colmers said.

Johns Hopkins officials said in an e-mailed statement that the Wolpoff firm canceled its contract with the hospital to handle new cases in February 2007 and that the hospital has filed significantly fewer lawsuits against patients since then. But Mann Bracken continues to represent Hopkins; Dickerson appeared for the hospital in "rocket docket" cases in Baltimore District Court as recently as Dec. 10.

Routine judgments

In the Baltimore City court and other district courts, judges routinely grant judgments based almost entirely on the hospital's presentation of an affidavit stating that the services were "medically necessary." The charges are always considered "reasonable" because they derive from rates set by Maryland regulators.

Patients who want to dispute the bills must file a "notice of intent to defend" within 15 days of receiving a copy of the lawsuit. Most never respond, and the hospitals win the cases by default as a result. Yet failing to satisfy a judgment, even a small one, can lead to a denial of credit, a home mortgage or an apartment lease. It can also prompt an employer to reject a job candidate and even lead to suspension of a driver's license in some circumstances.

Maryland law treats hospital bill lawsuits the same as those filed by credit card companies or banks, even though some states recognize that most people don't incur medical bills voluntarily.

American Hospital Association guidelines put out in April 2006 cautioned hospitals against filing liens on patients' homes as a matter of course. Yet at least 29 of 47 Maryland hospitals have placed liens over the past five years, The Sun found.

Suburban Hospital in Bethesda has filed at least 1,700 property liens, most of them in Montgomery County Circuit Court.

"Any time we receive a judgment we file a lien," said Donald J. Crawford of the Annapolis firm of Adelman, Sheff and Smith, which represents Suburban.

Liens can make it more difficult to sell property or refinance mortgages, and also show up on credit scores used to screen applicants for jobs, credit, and rental housing.

The Sun found at least $101 million in liens and court judgments from hospital collection lawsuits from the start of 2003 through the end of June 2008, without even counting many judgments of less than $2,000.

The University of Maryland Medical Systems won $35.7 million in judgments from more than 10,000 lawsuits filed across the state. Baltimore City courts issued nearly half the judgments, records show.

Bloom and Associates, headed by Neil Bloom, filed most of those lawsuits - and also filed cases for relatively small amounts on behalf of other hospitals. About one-third of the 153 cases the firm filed on behalf of Mercy Medical Center in Baltimore on Feb. 23, 2007, were for $500 or less, for instance. Only one case was over a bill that exceeded $1,000.

Bloom could not be reached for comment despite repeated attempts. University of Maryland officials declined interview requests but said in a statement that they try to "work with patients" to find ways to pay bills and avoid lawsuits.

"Unfortunately, there are patients who do not communicate with us or respond to our efforts to collect unpaid bills. In those cases, we cannot know their financial situation or whether they may qualify for programs that might reduce their financial burden," according to the statement.

Herbert A. Thaler is another one of the state's most active hospital collectors and a fixture in the District Court. A solo practitioner, Thaler has filed about 13,000 lawsuits for nearly a dozen hospitals since the start of 2003, according to court data.

Thaler says debtors can save themselves a lot of grief by simply communicating better with the hospital or its attorney.

"When you do [these lawsuits] in volume, it doesn't matter. I'm doing my job. If I have to go to court on one or 10, it doesn't matter," Thaler said, adding: "We proceed on these cases even for small balances."

Reporters for The Sun who observed Thaler hash out payment plans with debtors on several occasions in Baltimore's District Court found him to be courteous and sometimes affable, even when facing people who were suspicious and hostile.

"You don't have to be a bastard," he says.

When people say they can't pay, Thaler says, he advises them to ask the hospital for financial assistance. Most can pay at least something, he says, especially on small debts.

He said the hospitals decide when to sue. "It's not up to me," he said.

After he wins a judgment, Thaler said, it's up to the patient to work out a payment plan. People who are employed face the prospect of a court order to garnish their wages.

"When they refuse to communicate, we file for a garnishment," said Thaler. "Sure, it's routine."

Not responsible

Tamara Byrd was driving home from her job at the city Department of Social Services on Sept. 9, 2003, when a teenage driver collided with her car, sending Byrd's car smashing into a house. She spent seven days in the trauma center at Sinai Hospital in Baltimore with rib fractures and internal bleeding.

"When I first came home, my parents literally had to tuck me into bed every night. My mother had to bathe me. She had to help me get dressed," said Byrd, 40, who lives in Randallstown.

Byrd thought her bill was covered by her HMO. But more than two years later Sinai, through Thaler, sued her for $21,595. Byrd's case was on the docket on July 16, 2006. Thaler met her prior to the hearing to discuss a possible settlement.

She recalls encountering a traffic jam of sorts as lawyers for hospitals sought to find the people they were suing to set up conferences. "It was like a total business," said Byrd.

Byrd agreed to pay $100 a month after talking to Thaler. She complained to the judge that she didn't think it was fair to be stuck with the bill when she had insurance, but thought she had little choice but to settle. Judge Dorothy J. Wilson marked Byrd's case settled, remarking: "Well, good luck to you, ma'am," according to a transcript.

Two months later, Byrd found out that she never legally owed the bill to begin with.

A friend advised Byrd to file a complaint with the Maryland Insurance Administration, which ruled in September 2006 that Byrd was not liable for the charges.

Byrd's HMO had agreed to pay the charges once it was billed by Sinai. But the hospital failed to send the bill within six months as required by state law. Instead, it sued Byrd on Dec. 22, 2005, stating in court papers that she "refuses to pay the sums due."

The insurance administration ruled that the hospital acted improperly in suing her, adding that hospitals can't bill patients for covered services that their health plans decline to pay. Officials call these sorts of disputes "balance billing."

Byrd said she had agreed to settle her court case only because she didn't know that balance billing was improper.

The ruling instructed Byrd to file a complaint with the Maryland attorney general's office if the hospital kept trying to collect from her. "I have heard nothing since then," Byrd said.

Thaler said the hospital had mistakenly believed an auto insurer would cover the bill. He said that once he saw the insurance department ruling, he "backed off."

Bill Gruhn, chief of the consumer protection division for the Maryland attorney general's office, said state law prohibits hospitals from billing patients for services covered by their insurer.

"When we've seen it, we've taken action to stop it," said Gruhn, adding: "That is something that we would look into."

Gruhn said that since the start of 2005, the agency has received about 200 complaints concerning hospital billing matters, including balance billing.

Medicaid and Medicare

People who are eligible for taxpayer-funded health plans such as Medicaid, which treats the poor, and Medicare, which cares for the elderly, aren't supposed to get sued at all. Maryland law prohibits a hospital from knowingly pursuing collection cases against patients who are covered by Medicaid; it is considered another form of balance billing.

Hospitals maintain that they sometimes don't figure out a person is eligible for Medicaid until after the matter has been through the courts. It is legal in Maryland to sue while Medicaid is determining eligibility for benefits, but illegal if the hospital knows the patient is on public assistance.

Yet Bernice Starks, of Baltimore, says that happened to her.

She ended up at the University of Maryland Medical Center on March 6, 2007, after suffering a heart attack and kidney failure.

She took a hospital worker's suggestion and applied for Medicaid. She received retroactive coverage. But the hospital sued her in February, demanding that she pay the $20,140 bill, according to court records. Starks contends that the hospital sued her after she informed it she had been approved for Medicaid.

Starks and her husband showed up at an 8:30 a.m. hearing on May 20 and tried to explain things. A court clerk told her she needed proof that Medicaid would pay the bill and only then could call back and request a new hearing date, according to court filings.

The couple left confused, not realizing that the case was going on without them. The court entered a judgment against her for the full amount of the bill, records show.

"Most people don't know their rights," said Louise Carwell, a senior attorney with the Legal Aid Society of Maryland. She persuaded the hospital to undo the judgment against Starks and to collect the bill from Medicaid.

"There's a lot of judgments entered that need not be entered," Carwell said, adding: "Those bills can be really significant down the line. It totally messes up their credit."

Phil Donlin, a disabled former forklift operator on Medicare, also needed legal help after Johns Hopkins Bayview Medical Center sued him - even though he can barely afford the taxes on his modest Dundalk home.

Donlin, 61, spent a week at the hospital in October 2005 after his wife called 911 because he couldn't breathe.

Less than two months later, he received a letter from a state contractor saying that his $10,000 bill would be covered. But in August 2006, Johns Hopkins sued.

Donlin, who must travel with portable oxygen, struggled to make it to the Baltimore County District Court in Towson to defend himself.

"He would walk 10 steps and we'd have to stop," said his niece, Janet Ballistreri, who went along. By the time Donlin made it, the hearing was over.

The judge didn't ask about Donlin's insurance coverage before ruling that he owed the $10,736 bill, plus interest of $1,542, according to court records. At the time, Donlin and his wife, Bettie, lived on disability checks of $1,619 a month, court records state.

The University of Baltimore School of Law Civil Advocacy Unit filed an appeal for him. The case ended when the hospital agreed to bill Medicare for all but the $912 deductible and to collect that from Donlin in increasing installments starting at $25 a month. Johns Hopkins officials declined to comment on the case.

While he was struggling to make payments to Hopkins Bayview, which won't end until March 2009, Donlin's water was shut off a few months ago because he fell behind on his bills. Last month, he fell in the kitchen. Unable to walk, he slept on a couch. A few days later, his wife called an ambulance, which took him back to Bayview.

Donlin's wife, Bettie, said doctors found cancer in his lungs, spinal cord, and kidneys - and told her husband that the cancer is terminal.

While she waits for a shipment of kerosene paid for by a state program, Bettie has used the oven to heat the Dundalk rowhome.

"This will be the worst Christmas we'll have. There will be no presents, no lights, and no tree," she said.

To examine debt collection practices by Maryland hospitals, The Baltimore Sun compiled a database of 132,000 collection lawsuits filed by hospitals across the state from January 2003 through June 30 of this year. The Sun also compiled a partial database of judgments after state officials didn't respond to repeated requests for a complete file. The incomplete database contained $101 million in such judgments without counting most judgments of less than $2,000.

Reporters reviewed samplings of court files in several busy court districts, observed the collection process play out in the busiest of these courts in Baltimore City, and interviewed lawyers and patients involved in those proceedings. The Sun also obtained five years of financial records and other documents from the Maryland Health Services Cost Review Commission, which over a period of several months provided the newspaper with four different sets of data, each time contending the previous version contained inaccuracies.

The Private War of Chris Diwan

2009-08-13T05:42:00.000-07:00

As readers of this blog will know, Christopher Diwan was an associate attorney at now bankrupt Mann Bracken's Atlanta, GA, office.

Readers will also know that he once told the Better Business Bureau that someone who had complained had no file at Mann Bracken, and they will also know that the inept and incompetent Christopher Diwan backpedalled very quickly when he received a copy of Mann Bracken's correspondence.

There was also some rather comedic by-play at one point involving Diwan and the rather incompetent company, Corporate 180.

It is all very well documented.

Sending Stuff to Mann-Bracken

2009-08-03T17:34:00.000-07:00

Current contact info (note it is never wise to actually speak to them, that's to their advantage) for Mann Bracken:

Mann Bracken
702 King Farm Drive
Rockville, MD 20850

FAX: (240) 386-3864

Send your debt validation and cease and desist letters by certified mail. Mark them "payment department" so they'll accept them! Fax complaints and COPIES of anything you want them to read.

Mann Bracken: SEWER SERVICE

2009-07-23T06:05:00.000-07:00

JULY 22, 2009: NEW YORK—The state Attorney General’s office has sued 35 law firms and two debt collectors in New York State in order to throw out an estimated 100,000 default judgments improperly obtained against New York consumers.

According to the lawsuit filed Tuesday in New York State Supreme Court, Erie County, the companies relied on a Long Island company, American Legal Process (ALP), to notify New York consumers that they faced debt-related lawsuits. ALP, however, failed to properly serve consumers across the state with legal papers, causing thousands to unknowingly default and have costly judgments entered against them without the chance to respond or defend themselves.

In April of this year, Cuomo’s Office announced criminal and civil cases against ALP and its owner, William Singler, for this fraudulent business scheme.

The lawsuit is an effort to provide relief to the thousands of consumers facing costly default judgments as a result of ALP’s unlawful practices. The suit asks the court to vacate all default judgments secured against New York consumers in cases in which the firms (1) used ALP to serve legal process in commencing a lawsuit, and (2) the firms are unable to provide the court with any evidence, other than ALP’s affidavit, that proper legal service was made.

ALP, as a legal process server, was hired by high-volume debt collection law firms in New York to serve legal papers, usually a summons and complaint, notifying individuals that they are being sued and must answer the complaint. ALP, however, allegedly engaged in “sewer service,” where process servers take advantage of individuals facing lawsuits by failing to properly alert them and denying them the chance to respond. As a result, tens of thousands of judgments were obtained against unsuspecting New Yorkers, many of whom first learned they were being sued when they found their bank accounts frozen or their wages garnished. ALP covered up the fraud by falsifying sworn affidavits of service in courts across New York.

The law firms and debt collectors sued then used these false affidavits to obtain default judgments against NY consumers, the Attorney General said. Between January 2007 and October 2008, these law firms and debt collectors filed more than 100,000 lawsuits in every county in New York State, with the vast majority of the suits being debt collection actions. In a large percentage of the cases sampled and analyzed, the defendants never answered the lawsuit and the law firms sought and obtained default judgments from the courts. In seeking the default judgments, the firms made use of ALP’s fraudulent affidavits that claimed that the individual defendants had been given proper legal notice of the suit.

To rectify ALP’s widespread fraud on New York’s courts and consumers, the lawsuit, filed on behalf of the Honorable Ann Pfau, Chief Administrative Judge of the New York State Unified Court System, invokes the broad remedial powers granted to New York’s administrative judges to correct improperly obtained default judgments. In addition to seeking to vacate all of the default judgments where the sole evidence that the defendant received notice of the suit is an ALP affidavit, today’s lawsuit asks the court to order the law firms and debt collectors to:

Inform the New York State Unified Court System of each actions in which they used ALP to serve legal process and in which a default judgment was granted;

Notify all the parties in those actions of the existence of this lawsuit and their right to be heard; and

Notify the court of amount of any default judgments taken in any of the relevant actions, as well as whether the debtor paid any amount to satisfy the default judgment.

Additionally, where a default judgment is ultimately vacated, the suit asks the court to direct that proper restitution be made to any debtor who made payment on an improperly obtained default judgment. The Attorney General’s Office estimates that the average default judgment totaled approximately $5, 474.

The law firms and debt collectors named in today’s suit are: Forster & Garbus; Sharinn and Lipshie; Kirschenbaum & Phillips, P.C.; Solomon and Solomon, P.C; Goldman & Warshaw, P.C.; Eltman Eltman and Cooper; Eric M. Berman, P.C.; Stephen Einstein & Associates, P.C.; Fabiano and Associates; Jones Jones Larkin O’Connell; Panteris & Panteris, LLP; Zwicker and Associates; Relin, Goldstein & Crane; Woods Oviatt Gilman; Leschack & Grodesnky; Hayt Hayt & Landau; Pressler & Pressler; Jaffe & Asher; Mullen & Iannarone; Arnold A. Arpino & Associates; Houslanger & Associates; Mann Bracken, LLC; Smith Carroad Levy & Finkel; McNamee, Lochner Titus & Williams; Thomas Law Office; Fleck, Fleck & Fleck; Eric Ostrager; Cohen & Slamowitz, LLP; Cullen and Dykman LLP; Winston & Winston, P.C.; Cooper Erving & Savage, LLP; Robert P. Rothman, P.C; Gerald D. DeSantis; Greater Niagara Holdings, LLC; Rodney A. Giove; Advanced Litigation Services, LLC; and Jason L. Cafarella.

Attorney General Cuomo also announced that as part of his ongoing investigation into fraudulent process servers and debt collectors, his office is determining which other law firms statewide relied on ALP to serve legal process on New Yorkers facing lawsuits. More than 20 such firms have been identified to date and his Office is notifying those firms of its intent to seek to vacate any default judgments those firms have obtained based on ALP affidavits of service.

Mann Bracken Talks to the Dead…

2009-05-13T06:48:00.000-07:00

Don McNay: March 4, 2009

There is a New York Times story running on Huffington Post about debt collectors attempting to collect debts from dead people.

I had a situation that takes it one step further. A collector for MBNA claimed to have talked to my dead mother about her debt.

All of the details, including the letter from the debt collector and a copy of her death certificate, are here.

Once I wrote the column and our probate attorney filed an objection, MBNA withdrew the claims but the average consumer does not have access to an expensive attorney or have a son who is a nationally syndicated financial columnist.

Thus, we need to change the law so that everyone is protected.

Here is the story about mom:

MBNA claims to have talked to my dead mother

"I'll be coming home, wait for me"
-Righteous Brothers, Unchained Melody, (theme from the movie, Ghost)

My mother allegedly died on April 2, 2006. I say allegedly because a collector representing MBNA said he talked to her on June 21st.

Until I saw a letter from Dale Lamb, I felt pretty certain my mother was dead.

I viewed her lifeless body at the hospital. A funeral director, who I have known since the second grade, gave me an urn that supposedly contained her ashes. I have a death certificate from the state of Kentucky.

Despite all that, Lamb claims to have talked to her on June 21st.

Thanks to MBNA and their collector -- the ironically named, True Logic Financial Corporation -- mom is now in a category with Elvis Presley, Kurt Cobain, and Jim Morrison. She has been deemed alive despite tremendous evidence to the contrary.

Mom would love being associated with Elvis but would not have been wild about being categorized with Kurt and Jim.

It seems almost comical, but I was really angry. My mother died without warning, and I miss her. If MBNA's collector is able to talk to her, I wish he would give me her number.

The story of my mom and MBNA is an example why credit card companies need more regulation.

I was named administrator of mom's estate after she supposedly died. I then received a letter from a company called Mann Bracken, saying MBNA had obtained an arbitration award against mom.

No one in my family knew anything about a debt to MBNA or seen notice of an arbitration hearing. Mom was supposedly dead, so we could not ask her.

I hired a lawyer to contact Mann Bracken to give us some verification of the alleged debt and arbitration award. Two months went by with no response. The attorney followed up again but Mann Bracken never got back to us.

Instead of responding to my attorney, MBNA shifted the alleged debt to True Logic. The True Logic people didn't claim that MBNA actually had an arbitration award -- only that they might get one.

Taking MBNA and True Logic at their word, I'm curious as to what mom said to Mr. Lamb. I hope they have a tape recording. Mom was known to use salty language, and I'm sure Mr. Lamb would have heard some.

I'm not as prone to foul language, but if MBNA calls me, I am going to make an exception.

After True Logic sent the letter for MBNA, I once again hired an attorney, and once again he sent a letter denying the alleged debt. Once again, we have not had a response.

If MBNA wants to sue, I am not sure if they will go after the estate or have mom declared "un-dead" since they are having conversations with her. I'm not sure how to proceed if mom orally agrees to a payment plan. A judge will have to figure all that out.

The whole incident has made me wonder how often MBNA ignores the legal right of creditors to verify a debt. They have one collector send a letter, ignore the response and then have another collector try again.

I suspect that collectors can sometimes convince an unsuspecting family or estate to pay money.

The first letter from MBNA claiming that they had actually obtained an arbitration award sounded serious. It was enough for me to hire a lawyer. The only follow up I received from MBNA was the letter from Mr. Lamb saying he spoke to a woman who is legally dead.

On the other hand, it could be that Lamb did talk to mom. One of her favorite movies was Ghost. Mom may not be able to communicate with me, but Lamb might be a real-life version of the psychic that Whoopi Goldberg portrayed in the movie. By talking to Lamb, Mom may be sending a signal that she wants MBNA put up or shut up.

Mom is one you never wanted to mess with. Allegedly dead or allegedly alive.

Don McNay, CLU, ChFC, MSFS, CSSC is the Founder of McNay Settlement Group in Richmond, Kentucky, where we work with clients who are currently living. Don is an award winning, syndicated, financial columnist and the author of Son of Son of A Gambler: Winners, Losers and What to Do When You Win the Lottery. Don is Treasurer for the National Society of Newspaper Columnists.

Mann Bracken Claims Immunity From Investigation

2009-05-08T12:21:00.000-07:00

SPOTLIGHT: BY ALISON YOUNG

The Atlanta Journal-Constitution

Sunday, March 15, 2009

Consumers complain that a Marietta debt collection firm uses deceit and abusive tactics to collect money, even when it isn’t owed, records show.

Enough complained that the Georgia Governor’s Office of Consumer Affairs began investigating last fall. It ordered Frederick J. Hanna & Associates to answer questions about collection practices, consumer disputes and what it does to ensure the validity of debts.

But for three months the state’s top consumer watchdog agency and the debt collector have been in a standoff.

Frederick J. Hanna & Associates says its tactics are none of the state agency’s business. Because it’s a law firm, the debt collector contends it is outside the consumer office’s jurisdiction. It refuses to answer the agency’s questions.

“We don’t feel like they’re entitled to anything. Period,” Frederick Hanna said. He said his firm gets 50,000 new debt files each month and its collection methods are legitimate.

The consumer office says it has a right to investigate whether the firm’s tactics are breaking state law. “If we perceive an infraction of the law, we don’t believe your status as a law firm will protect you,” said Bill Cloud, a spokesman for the consumer office.

A hearing is scheduled March 30 in Cobb County Superior Court and the outcome could have a significant impact on thousands of Georgia consumers targeted by debt collectors — especially those who don’t owe money.

Here and across the nation, consumers complained more about debt collectors than any other industry in 2008, according to new data from the Federal Trade Commission’s Consumer Sentinel Network.

The network, used by law enforcement, tracks complaints to the FTC, as well as to groups such as the Better Business Bureau, FBI, U.S. Postal Inspection Service, Social Security Administration and the National Consumers League.

Last month the FTC issued a report saying the debt collection legal system needs reform and the 1977 Fair Debt Collection Practices Act needs to be modernized to reflect changes in technology, debt and the collection industry.

While the FTC said timely payment of debts is important, it said the law needs changes to better ensure that collectors are going after the right people for the right amounts of money. The law also needs to mandate that collectors give consumers better information about their legal rights.

Complaints about debt collectors are on the rise and some of the tactics firms use are already illegal, Cloud said.

“A lot of them are buying up ‘zombie debt.’ It’s old debt you cannot collect anymore by normal means,” Cloud said. “It’s essentially debt renewal. To get you back on the hook they try to intimidate and try to berate you.”

Zombie debt, like the name implies, is debt — legitimate or not — that refuses to die. It may be debt that resulted from identity theft years ago that the original creditor wrote off. It may be a legitimate debt that is several years old, was already paid off or has been legally erased by bankruptcy. The debt gains new life when sold to a collection agency for pennies on the dollar.

In November, the state consumer office served an investigative demand notice, similar to a subpoena, on Frederick J. Hanna & Associates. It asked for documents about the firm’s collection practices, including those involving zombie debts. Officials with the consumer office declined to give details about the complaints they have received about the firm, citing the ongoing investigation.

The firm has an “F” rating with the BBB because of its complaint history, including failing to respond to consumer concerns, according to BBB records.

State officials are investigating potential violations of Georgia’s Fair Business Practices Act, according to the notice, including allegations the firm engaged in abusive or oppressive tactics prohibited under state and federal laws and allegations the firm used misleading and deceptive methods. The notice does not provide details or examples.

Hanna said Friday that if the consumer office wants to review a few specific files, he’d allow it. But he said he has hundreds of thousands of files and it is unreasonable to provide them all, as has been requested.

Until recently, it was unclear whether the state Fair Business Practices Act could be applied to debt collectors. In 2007, the Georgia Court of Appeals held that collection of a debt is a consumer transaction covered by the law.

Frederick J. Hanna & Associates, in documents filed in Cobb County Superior Court, says the consumer office is asking for an unreasonable amount of information. But beyond that, the debt collection law firm contends that the consumer office has no jurisdiction over the practice of law and therefore no jurisdiction over its activities. The consumer office is seeking an order from the court to force the firm to comply with its demand for documents and information.

State consumer officials have opened a similar investigation of Mann Bracken, a national debt collection law firm with an office in Atlanta. Mann Bracken also contends the consumer office doesn’t have jurisdiction, according to Fulton County court records. Lawyer conduct is regulated only by the State Bar and the Supreme Court of Georgia, the firm said in documents filed in court.

Hanna said Spotlight should not be focusing on debt collection firms. The problem is the debtors and the amount they owe, he said, adding that consumers should try to work with people like him.

Cloud warned that consumers should be careful about anything they say to a debt collector. Insist the firm send you written proof you owe the money, he said.

“If this is an old debt and you do not believe you owe this money, do not in any way, shape or form reaffirm this debt,” Cloud said. “They are probably recording you.”

Same Old, Same Old

2009-04-30T12:09:00.000-07:00

Mann Bracken have been sued in California. Here's a page from the complaint (double click to enlarge).

Harassing calls are coming from (866) 376-0410. This is probably Mann Bracken's office in Atlanta, GA.

You would think that with such wonderful attorneys as Scott Kramer, Chris Diwan, and Matthew Linkie running the place, Mann Bracken would clean up its act.

It is high time these people were closed down for repeated violations of the Fair Debt Collection Practices Act (FDCPA).

In addition to filing lawsuits against Mann Bracken, Bar Complaints should be filed against the attorneys who run it. After all, Mann Bracken does pride itself on being a "solutions company" and "attorney led" so let the attorneys take some heat. After they are disbarred, they will find out what tough times are all about.

Chris Diwan is UPSET

2009-04-25T07:42:00.000-07:00

Look at this:

"Like some of the other people here, I've been in touch with Christopher Diwan when Mann Bracken got out of hand.

Now he wanted to know why he was getting all the calls. I told him his name was here as the "complaint attorney" for Mann Bracken. He said there are other attorneys there as well. The names he gave are in the subject of this note.

So if Chris Diwan is not there, at Mann Bracken ask for one of these other attorneys. By the way he said Mann retired and of Bracken it is only the original Bracken's son, Chris Bracken Jr. who has anything to do with this outfit."

The other attorneys are Connell Loftus, Matthew Linkie, Scott Kramer and Chris Bracken III. Ask for any of them. Hopefully they will be as helpful as Chris, reducing debt to pennies on the dollar, as that's what they pay for it anyway.

You can read more about Christopher Diwan here.

Chris Diwan is RUNNING SCARED

2009-04-19T07:08:00.001-07:00

Someone sent us this first person account of their dealings with Christopher James Diwan at Mann Bracken:

***

I read the posts on various boards and ended up calling Chris Diwan (678) 801-2399. He wouldn't take my call at first and then I told the secretary if he wanted to head off a complaint to the bar he needed to talk to me. All of a sudden he was there on the phone!

I told him breifly all the lies that Ms. Jones had told my wife and how they had broken the law when it came to the fair debt collection practices act. He asked me what I wanted him to do, and I told him I wanted him to take care of it. He was quiet for a second, and then he said done! I said what does that mean? He said it is taken care of. I said so what exactly does that mean to me? He said I put a Cease and Desist on your account.

So I asked what was to come of the amount of the debt? He said he couldn't discuss that with me. I told him I needed to know what they planned on doing, and he said that he couldn't discuss it. He finally did say that if I wanted to make a 3 times payoff for a settlement he could talk about that. but if I wanted longer payments he couldn't do anything. As I began to ask more questions, he cut me off and hung up.

I have an attorney that I have worked with in the past so I called him. He said I probably scared them off and they will send the account back to Chase and Citi. I might hear from Chase and Citi again or another attorney firm. He said more than likely they have an "internal" code that says when someone plays the complaint to the bar card, they wash their hands of it and send it back to the account holder.

***

This is the same Chris Diwan who told the Better Business Bureau that Mann Bracken had no file on someone who filed a complaint. He sure had to dance, maybe pee his pants, when the person sent the Better Business Bureau copies of correspondence from Mann Bracken.

The man is a liar. But as you can see he's scared of bar complaints. Too many of those and he's not a lawyer any more. He will be answering the phones for an escort service!

Mann Bracken THROWN OUT OF NEVADA

2009-03-26T19:31:00.000-07:00

On October 14, 2008:

The State of Nevada, Department of Business and Industry, Financial Institutions Division ordered Mann Bracken to cease all operations in Nevada until they are appropriately licensed.

The rumor is that when the call got to the Mann Bracken mothership on Paces Ferry Road in Atlanta, James Branton wet his pants!

All states need to follow suit, no pun intended!

The "new and improved" Mann Bracken

2009-01-11T11:16:00.000-08:00

Apparently there's been some MAJOR restructuring after the Mann Bracken Wolpoff Abramson Eskanos Adler Axiant shakeout…this is their most recent letterhead.

Note the locations, note the lack of attorney's names. It seems most of the work is done by associates, and Chris Bracken sits somewhere in the background and collects a percentage.

Finally-don't ignore the warning about the "main office!"

Chris Diwan Says "oops"

2009-01-06T09:46:00.000-08:00

When someone complained to the Better Business Bureau about Mann Bracken, Christopher James Diwan, hack attorney, was quick to respond.

He told the Better Business Bureau that Mann Bracken had no file on the person who filed the complaint.

Well, the person who filed the complaint provided the Better Business Bureau with a letter from Mann Bracken, and then Mr. Diwan had to dance! Bottom line: keep your correspondence, record your calls.

Chris Diwan Says: "No such account here at Mann Bracken"

2009-01-06T09:40:00.000-08:00

Someone filed a Better Business Bureau complaint against Mann Bracken.

Here is part of the correspondence-note that Christopher Diwan (incompetent, bungling attorney) says there's no such account, and he challenges the person to provide proof!

"All Calls to this Number are Recorded"

2008-12-28T09:52:00.000-08:00

How to get Mann Bracken to stop calling you at work.

Simple. Just tell them, per new company policy, all calls are recorded. These guys hate having their calls recorded! They know they go over the line, and recordings just make things worse for them.

They will stop calling you at work. Trust us on this one. Then, if they call you at home, tell them you record all of those calls just in case there's harassment.

Presto change-o! No more calls. Now they may do other things, but they can't call and harass any more.

The "man" from Mann Bracken

2008-12-06T15:22:00.000-08:00

If this isn't illegal, we don't know what is. Hard to say what would happen if the occupant felt threatened by this "Mann" in black.

***

Last night (December 5, 2008) at approximately 8:30p, a man who claimed his name was 'Joe' rang my doorbell and asked for me. When I came to the door, 'Joe', who was dressed in all black and driving a black car, proceeded to present me with what appeared to be a summons to appear in Fulton County court to answer a 'complaint against account' for monies owed to Capital One Bank. 'Joe' was obviously not a sheriff, was not in an official county sheriff's vehicle, and could not produce any I.D. authenticating who he claimed he was.

Upon closer scrutiny of the 'summons', the only information included was information on how to contact Mann Bracken to file a response with either the clerk of the court or Mann Bracken regarding the 'complaint against accout'. The 'summons' indicated that it was filed on 11/4/08, but includes no civil action file number, no information about reporting to court or any other information common to an actual court summons.

Further, the document states that I have 30 days to respond from date of service, however there is no date of service listed and I was not asked to sign anything indicating that it had been served. In fact, yesterday was 12/4/08, fully 30 days AFTER the filed date stamped on the document.

Quite frankly, the whole entire thing looks like some made up, bogus BS designed to scare me into contacting Mann Bracken as there is no information included about the account that about which they are allegedly filing the complaint. And, in any event, this is so clearly out of line with allowable and legal debt collection practices I am amazed that they are even trying to pull such an obviously illegal stunt.

Mann Bracken: Caught in a Web of Lies

2008-11-29T15:25:00.000-08:00

Blog comment: very good work by someone being harassed by Mann Bracken! Keep track of what happens, and use Certified Mail.

***********************************

On 10/10/06 I came to an agreement to settle on an unsecured loan with Chase Bank, which they turned over to Mann Bracken for collection.

I spoke with a rep (Ms Evans) who advised me I could settle for $1545.56. I mailed a check on 10/11/06 via USPS ExpressMail (tracking # showed it was received and I got delivery confirmation) which was received on 10/12/06 and cashed on 10/16/06.

She promised the debt would be settled and I wrote on the front and back of the check that once cashed the debt would be settled.

On 10/17/06 I received a letter from the National Arbitration Forum stating that a document hearing would be held--Mann Bracken was to send them a letter stating I had settled the debt.

On 10/27/06 I received a signed letter from Mann Bracken stating they were holding a hearing as the next step to filing for a judgment against me.

On 10/30/06 I received a phone call from Mann Bracken (678-801-2399 their Atlanta office#) they violated FCC regulations by calling to harass me, because on 8/29/06 I mailed a 'cease and desist' letter to their office via USPS Express Mail (tracking# showed it was received and I got delivery confirmation). Also I had tried to settle the debt before by mailing a check to their office via USPS Express Mail (once again--tracking# showed it was signed for and received) on 7/7/06, but they never cashed it. I called them on numerous times, every rep lied to me saying that they never got my check but on the USPS website it was received.

Finally after I sent the 2nd check, they returned my 1st check--I received this by mail on 10/20/06 (it was mailed on 10/16/06 by the postage on the envelope). This debt is SETTLED! I would like the phone calls to stop and the arbitration claim to be dropped. They have violated FCC regulations by continuing to contact me via phone and mail after I sent a C&D letter and by lying about not receiving my 1st check and holding it without cashing it.If anyone knows how to stop these idiots please tell me! I have already filed complaints with the BBB and the FTC, but that doesn't even seem to go anywhere.

Mann Bracken: Defeated Again!

2008-11-09T13:14:00.000-08:00

What a mess: Bank of America, FIA, Trans Union and Mann Bracken. All those lawyers and the consumer still won! Truth was on her side! Maybe you should remind Mann Bracken Wolpoff Abramson Eskanos Adler Axiant of this case when they harass you...

*******************************************

Page 1
Plaintiff has settled with former defendants CSC Credit Services, Inc. and Mann
1
Bracken, LLC, dkt. ##95 and 97.
1
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
BOBBIE A. SCHEEL-BAGGS,
OPINION AND ORDER
Plaintiff,
07-cv-671-bbc
v.
BANK OF AMERICA, d/b/a FIA CARD SERVICES, NA,
successor-in-interest to MBNA AMERICA, NA;
TRANS UNION, LLC ,
1
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Plaintiff Bobbie Scheel-Baggs’s former husband seems to have subscribed to the
philosophy that all is fair in love and war. He left her with a $16,000 credit card debt that
he had accumulated and then discharged in a bankruptcy proceeding after the divorce. As
a result, plaintiff was hounded by defendant FIA Card Services, NA and its agents for two
years as they tried to collect the debt, even after an arbitrator had ruled it uncollectible from
plaintiff.
It appears that plaintiff’s ex-husband’s financial irresponsibility and defendant FIA’s
Case: 3:07-cv-00671-bbc Document #: 101 Filed: 09/15/2008 Page 1 of 25
Page 2
2
attempts to collect the debt caused plaintiff no small amount of grief, but those issues are
not the focus of this case. Rather, the question is whether defendants FIA and Trans Union,
LLC violated the Fair Credit Reporting Act, 15 U.S.C. §§ 1681-1681u, by failing to take
reasonable measures to determine that plaintiff was not liable for the debt, failures she
contends were a factor in her inability to obtain credit and the cause of her physical and
emotional distress. Defendants’ motions for summary judgment on those claims are now
before the court. (Plaintiff included other claims in her complaint as well, but she has
abandoned them by failing to respond to defendants’ motions for summary judgment with
respect to those claims. Wojtas v. Capital Guardian Trust Co., 477 F.3d 924, 926 (7th Cir.
2007).)
Defendants’ motions for summary judgment will be granted in part and denied in
part. For much of the time that plaintiff was disputing the debt, she did not give defendants
any reason to believe that her credit report contained any factual inaccuracies. She said
generally that she was not responsible for the debt or more specifically that the debt had
been assigned to her ex-husband as a result of a divorce decree. Neither of these reasons
would lead defendants to believe that plaintiff had never applied to be included on the
account, which is plaintiff’s position now. However, FIA continued to report that plaintiff
was liable for the debt, even after an arbitrator held to the contrary in August 2007. Around
the same time, plaintiff informed defendant Trans Union that she had never been included
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on the account and that it belonged solely to her ex-husband. Trans Union failed to inform
FIA of the nature of the dispute or take any other actions to verify the accuracy of the
account. These actions are sufficient to support a finding by a jury that defendants violated
plaintiff’s rights under the Fair Credit Reporting Act.
Also before the court is plaintiff’s motion for leave to file a “supplemental opinion,”
which she filed several weeks after the parties completed briefing defendants’ motions for
summary judgment. The motion will be denied as unnecessary because the opinion plaintiff
asks the court to consider is an unpublished district court case from another state that does
not provide any useful analysis.
From the parties’ proposed findings of fact and the record, I find that the following
facts are undisputed.
UNDISPUTED FACTS
In March 1995, David Baggs opened a consumer credit account with MBNA America
Bank, which is now defendant FIA Card Services, NA. (For the remainder of the opinion,
I will refer to both MBNA and FIA as “defendant FIA.”) The last four digits of the account
were 9512. Plaintiff Bobbie Scheel-Baggs married David Baggs in September 1996.
Defendant FIA’s records reflect that in June 2000 it received a call from a person
named Bobbie who identified herself as Baggs’s wife and that upon her request it sent Baggs
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a letter to add another person to the account. (The parties dispute whether plaintiff made
the phone call identified in FIA’s records.) The letter included the following:
You recently asked about adding someone to your account. There are two ways to
do this.
To add a “joint Customer,” you and the co-applicant should fill out the top part of
the enclosed form. Once your request is approved, the joint Customer will receive a
card and both of you will be responsible for paying any balance due on the account.
Each account can have only two joint Customers.
To add an “authorized user,” you should fill out the bottom part of the form. The
authorized user will receive a card, but will not be responsible for paying the account
balance.
When you have completed the appropriate section of the form, please mail it, or call
to provide the information. When a representative has spoken to you (and the co-
applicant, if you are adding a joint Customer), you will have a prompt answer to your
request.
Defendant FIA’s records indicate that it “received an application requesting that plaintiff be
added as a joint customer,” but FIA does not have a copy of such an application. The records
do not indicate whether plaintiff signed the application. (Plaintiff denies that she completed
or signed such an application.) On July 21, 2000, defendant FIA added plaintiff to the
account as a joint customer. Defendant FIA’s records also indicate that a woman identifying
herself as plaintiff called FIA on several occasions on matters relating to the 9512 account
in 2000, 2001 and 2002. (Plaintiff denies that she had any communication with FIA during
that time period.) Plaintiff never made a purchase on the 9512 account.
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Plaintiff and Baggs divorced in June 2003. In October 2005, Baggs filed for
bankruptcy. In January 2006, Baggs’s $16,000 debt on the 9512 account was discharged.
In response to the discharged debt, defendant FIA created a second account with the
last four digits 4249 “for purposes of freezing activity on the existing account number and
forwarding that account to the recovery department.” Defendant FIA knew that both
account numbers would appear on plaintiff’s credit report, suggesting that she had two
adverse accounts instead of just one.
Defendant FIA called plaintiff about the debt on October 28, 2005, December 20,
2005, December 28, 2005 and “numerous” times in January 2006. During at least some of
these phone calls, plaintiff disputed the debt, saying that it belonged to her ex-husband who
had discharged it in his bankruptcy. (Plaintiff does say specifically what she told FIA.)
When FIA called Baggs on October 28, 2005, he made similar statements. During one of
these phone calls, plaintiff “demanded” that FIA provide proof that she was an obligor on
the account.
Defendant FIA hired Mann Bracken to collect on the 4249 account. Between April
31, 2006 and August 26, 2006, Mann Bracken called plaintiff more than 90 times.
When plaintiff obtained her credit report from defendant Trans Union, it showed
under “adverse accounts,” a debt of $16,140 under the 4249 account and a debt of $15,568
under the 9512 account. The “pay status” of the 4249 account was listed as “charged off as
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bad debt” and the status of the 9512 account was listed as “120 days past due.”
On August 22, 2006, plaintiff filed an “online dispute” with defendant Trans Union
regarding the 9512 and 4249 accounts. Under “Requested Investigation,” plaintiff wrote,
“investigate ownership: I am no longer liable for this account per divorce decree.” Trans
Union reported the dispute to FIA and summarized it as follows: “Not liable for Acct (i.e.
Ex-Spouse business). If Liable, Provide Complete ID and ECOA Code.” When FIA received
notice of this dispute, it instructed Trans Union to delete the 9512 account because it was
the same as the 4249 account. With respect to the 4249 account, defendant FIA verified
that the account was listed in plaintiff’s name and verified that the address, social security
number and account history matched the personal identifying information contained in
plaintiff’s credit bureau dispute. However, FIA did not attempt to locate plaintiff’s
application even though it had a system called COBRA that sometimes stored such
applications.
In a letter dated September 15, defendant Trans Union reported to plaintiff that as
a result of its investigation, the 9512 account had been deleted but that the 4249 was
“verified” as belonging to plaintiff and would remain unchanged. Trans Union verified the
account despite a discrepancy between the address for plaintiff it had on file and the address
provided by defendant FIA.
In September 2006, plaintiff called defendant FIA and said that she “never opened
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the account,” that she was “not responsible” for it, that she “was no longer [an] owne[r] of
this business” and that there was “fraud.”
In October 2006, plaintiff disputed the 4249 account with Trans Union over the
telephone. (Neither party proposed facts regarding the substance of that conversation.)
Trans Union summarized the dispute to FIA as “Not his/hers. Provide complete ID.” FIA
again confirmed to Trans Union that the personal information on the account matched the
information provided by plaintiff during the dispute.
In November 2006, plaintiff again disputed defendant Trans Union’s credit report.
Under “consumer statement,” she wrote, “Account(s) on my credit file are the responsibility
of my ex-spouse per our divorce decree.” In a separate letter to Trans Union, she wrote that
the 4249 account “needs to be deleted from my account immediately.” She provided the
following explanation:
I was divorced in 2003 from David J. Baggs, my former husband. He was granted use
of the MBNA Credit Card ending in 9512. (See divorce papers attached.)
He defaulted on the credit cards and filed for bankruptcy in Dec of 2005. Attached
is his bankruptcy notice and granted [sic]
MBNA stated to me over the telephone that they DID close the 9512 account,
however they DID BEGIN another account ending in 4249. This account is
“connected” to 9512.
You have my permission to contact MBNA regarding the 4249 account to verify that
it is in fact connected to the original 9512 account. They refuse to speak about the
9512 account and state that the business is handled in another manner. They do
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admit that it is standard business to develop a new account number – this is wrong!
They will also not provide proof of this account being mine either.
Both of the accounts are the responsibility of my former husband and not me.
Thank you for your help in this matter!!!
Defendant Trans Union sent two letters to plaintiff in response. (It did not forward
the dispute to defendant FIA.) In one letter, Trans Union stated: “Our records show that
your creditor(s) previously verified as accurate the items that are listed below. Therefore,
under the Fair Credit Reporting Act, we consider this dispute frivolous and will not
reinvestigate the item(s) unless you can provide court papers or a recent, authentic letter
from the creditors that explains what information should be updated.” In the other letter,
it stated: “The creditor is currently reporting the disputed information as a joint obligation.
When co-signing for credit, you are equally responsible for the repayment of that obligation.
Unless you and the creditor agree to remove your name from the account, we will report
these debts and all subsequent credit information in the names shown on the contract or
application. . . . A divorce decree does not override an original contract with a creditor.”
In January 2007, defendant FIA hired a third party debt collector, Creditors
Interchange, to collect the debt on the 9512 account. Also in January, defendant FIA
initiated an arbitration proceeding against plaintiff for payment on the 4249 account.
On April 25, 2007, defendant FIA began looking for an application signed by
plaintiff. It never found the application.
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On August 14, 2007, defendant FIA lost its claim against plaintiff in arbitration. The
claim was dismissed with prejudice.
On August 24, 2007, plaintiff sent a letter disputing the 4249 and 9512 accounts to
defendant Trans Union and other credit reporting agencies. With respect to the 4249
account, plaintiff wrote, “This NEVER was a real account. It is a FAKE account created by
[defendant FIA] based on [the 9512 account] and is FALSELY being reported as a true and
accurate account.” With respect to the 9512 account, she wrote, “This is the ‘original’
account to the FAKE account . . . created by [defendant FIA]. It IS NOT MINE. It was an
individual account only belonging to my ex-husband prior to our marriage and CHARGED
OFF in his bankruptcy.”
On August 31, 2007, defendant FIA received notice of the dispute regarding the 4249
account. (Defendant Trans Union had already deleted the 9512 account.) Trans Union
summarized the dispute as follows: “Claims inaccurate information. Provide or confirm
complete ID and verify account information.” Defendant confirmed to Trans Union that
the information was accurate. Trans Union repeated this information to plaintiff in a
response dated September 14, 2007.
In August 2007, plaintiff began shopping for a new car. The following requests for
credit were denied:
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Creditor
Date of
Credit
Denial
Stated Reason for Denial
Source of
Credit Report
Royal Credit Union
8/22/07
– Delinquent past or present
credit obligations with others
- Value of type of collateral not
sufficient
Trans Union
Bremer
8/23/2007
– Excessive obligations in
relation to income
– Value or type of credit not
sufficient
CSC Credit
Services
Fifth Third Bank
8/24/07
– Delinquent credit obligations
– Excessive credit obligations
– Insufficient credit references
– Excessive credit inquiries
– Excessive use of revolving
credit
Trans Union
Wells Fargo Auto
Finance
8/27/07
Delinquent past or present
credit obligations
Trans Union
and Equifax
Bank of America
8/28/07
None provided
Trans Union
JP Morgan Chase
Bank
9/7/07
None provided
Trans Union
GMAC
9/10/07
None provided
Trans Union
AmeriCredit
9/10/07
None provided
Trans Union
HSBC AutoFinance
9/11/07
– Percentage of Delinquent
Credits in Last 6 Months
– Delinquency on Recently
Opened Accounts
– Insufficient Number of
Accounts Rated Current”
Equifax
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Citizens Autmobile
Finance
9/15/07
– Collection item or chargeoff,
judgment foreclosure or
repossession
– Delinquent credit history
– High level of open end AND
unsecured credit balances
Trans Union
Capital One
10/7/07
None provided
Trans Union
Experian
Equifax
(Defendant FIA does not dispute that plaintiff was denied credit by these lenders, but
defendant Trans Union objects to the admission of the letters denying plaintiff credit on the
ground that they are hearsay. However, I conclude that such letters are admissible under the
business records exception, Fed. R. Evid. 803(6), or the residual exception, Fed. R. Evid.
807. Trans Union does not suggest any reason why such letters would not be an accurate
reflection of the creditor’s actual decision. Certainly, creditors have no incentive to send out
letters falsely denying credit applications.) Plaintiff ultimately obtained financing to lease
a car for $449 a month through Nissan Motor Corporation on September 19, 2007.
As of September 14, 2007, plaintiff’s credit report listed three adverse accounts
unrelated to the 4249 account: (1) Alliance Collection Agencies was classified as a
“Collection Account” and had a balance of $684; (2) Alltel Communications was classified
as “Charged Off As Bad Debt” and had a balance of $418; and (3) Capital One Services was
showing two late payments and had a balance of $0. Plaintiff’s income reported on her tax
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returns was $11,826 in 2007 and $11,303 in 2006.
The 4249 account remained on defendant Trans Union’s credit report for plaintiff
until she filed this lawsuit in March 2008.
OPINION
A. Defendant FIA Card Services
Plaintiff’s sole claim against defendant FIA is that it violated 15 U.S.C. § 1681s-2(b),
which requires furnishers of credit information to conduct an investigation when they receive
notice of a dispute from a consumer reporting agency. Although the language of the statute
does not expressly require it, I have concluded in previous cases that the statute should be
read as requiring a reasonable investigation. McKeown v. Sears Roebuck & Co., 335 F.
Supp. 2d 917, 936 (W.D. Wis. 2004); Kronstedt v. Equifax, No. 01-C-52-C, 2001 WL
34124783, *16 (W.D. Wis. Dec. 14, 2001). See also Westra v. Credit Control of Pinellas,
409 F.3d 825, 827 (7th Cir. 2005) (assuming without discussion that § 1681s-2 requires
“reasonable” investigation). No party challenges that conclusion in this case.
In her brief, plaintiff identifies two deficiencies in defendant FIA’s investigation: (1)
FIA failed to confirm that plaintiff was liable for the account by reviewing the application
that caused plaintiff to be added to the account; and (2) it failed to report the account as
disputed to credit reporting agencies such as defendant Trans Union between August 2006
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and March 2008. With respect to the second asserted deficiency, plaintiff appears to be
relying on § 1681s-2(b)(1)(D), which says, “if the investigation finds that the information
is incomplete or inaccurate” the furnisher must “report those results to all other consumer
reporting agencies to which the person furnished the information and that compile and
maintain files on consumers on a nationwide basis.”
This raises the question whether information about an account is “incomplete or
inaccurate” if the information does not include an account holder’s dispute. Plaintiff cites
Saunders v. Branch Banking and Trust Co. of VA, 526 F.3d 142, 148 (4th Cir. 2008), for
the proposition that it is, but plaintiff’s reliance on Saunders is misplaced. In Saunders, the
court held only that it was wrong to conclude that “reporting a debt without reporting its
disputed nature can never be deemed inaccurate as a matter of law.” Id. at 149 (emphasis
in original). The ultimate question is whether failing to report the dispute is “misleading in
such a way and to such an extent that [it] can be expected to have an adverse effect.” Id. at
150 (quoting Dalton v. Capital Associated Industries, 257 F.3d 409, 415 (4th Cir. 2001)).
In determining whether an omission is misleading, a court must take into account §1681s-
2(b)(1)(E), which is the only part of the statute that addresses the issue of disputes. It states
that when “an item of information is disputed by a consumer,” the furnisher of information
must modify, delete or block the disputed information if it “is found to be inaccurate or
incomplete or cannot be verified after any reinvestigation.” In other words, once a disputed
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piece of information has been verified by an investigation, § 1681s-2(b) imposes no further
obligation. Thus, the question whether defendant FIA was required to report the dispute is
subsumed within the question whether it conducted a reasonable investigation.
The sole deficiency in defendant FIA’s investigation that plaintiff identifies is its
failure to look for a copy of the application adding plaintiff to the account, but any argument
regarding the reasonableness of defendant FIA’s investigation before the arbitration ruling
is foreclosed by Westra, 409 F.3d 825, a case that plaintiff fails to acknowledge. In Westra,
the court held that a furnisher discharged its duty as a matter of law under § 1681s-2(1)(b)
by verifying the account holder’s name, address and date of birth. The court stated in dicta
that “perhaps a more thorough investigation would have been warranted” if the furnisher
had been told that the nature of the dispute concerned fraud, but no more was required
because the furnisher was told only that “the account did not belong to” the plaintiff. Id.
at 827. In this case, the facts show that defendant FIA received information from defendant
Trans Union that was just as “scant” as that furnished in Westra. Specifically, Trans Union
summarized plaintiff’s dispute as “Not liable for Acct (i.e. Ex-Spouse business)” or even more
simply as “Not his/hers.” From this, FIA had no reason to conduct a more thorough
investigation than it did.
Plaintiff points to her own phone calls with defendant FIA, but the facts plaintiff
proposed regarding these calls do little to help her case. As an initial matter, it is not clear
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whether information provided by plaintiff could trigger any duty for FIA to act under §
1681s-2(b)(1). That provision applies after a furnisher receives notice of a dispute “pursuant
to 1681i(a)(2),” which is a provision involving notice provided by “consumer reporting
agencies,” not individual consumers. In any event, plaintiff’s conversations with FIA were
no more specific than the notices from the credit reporting agencies. The facts show only
that she said her ex-husband was “responsible” for the account. FIA’s records show that
plaintiff used the word “fraud” in one conversation in September 2006, but plaintiff
proposed no facts showing the context. I cannot conclude that using the word in isolation
is enough to trigger a duty to find a signed application from plaintiff.
The landscape changed significantly on August 14, 2007, when the arbitrator denied
defendant FIA’s claim against plaintiff regarding the 4249 account and dismissed it with
prejudice. The facts do not show that FIA appealed that decision and FIA does not deny
that the decision is binding. Thus, a jury could find that FIA acted unreasonably in violation
of § 1681s-2(b) when it informed credit reporting agencies in late August and September
2007 that plaintiff still owed the debt. Crabill v. TransUnion, LLC, 259 F.3d 662, 664 (7th
Cir. 2001) (reasonableness of investigation is generally question of fact for jury). Although
FIA argues in its brief that plaintiff has failed to show that FIA’s lawyers informed the
company of the arbitration decision before FIA confirmed the inaccurate information, this
argument misses the point even if I assumed that FIA’s lawyers could be separated from FIA.
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The question is not whether FIA actually knew it was reporting inaccurate information but
whether it should have known this by conducting a reasonable investigation. Certainly, a
jury could find that a company’s failure to consult with its own lawyers is unreasonable for
the purpose of § 1681s-2(b).
B. Defendant Trans Union
Two related provisions of the Fair Credit Reporting Act are at issue with respect to
plaintiff’s claim against defendant Trans Union: 15 U.S.C. § 1681e(b), which requires credit
reporting agencies to follow “reasonable procedures” for insuring the accuracy of a credit
report, and 15 U.S.C. § 1681i, which requires the agencies to conduct a “reasonable
investigation” when a consumer disputes the accuracy of information in a credit report.
Plaintiff contends that Trans Union violated these requirements by (1) failing to discover
on its own that the 4249 and 9512 accounts were duplicates; (2) refusing to conduct a new
investigation when the account had been verified less than 180 days earlier; and (3) not
requiring defendant FIA to provide “actual proof of account liability” by asking to send it
a copy of plaintiff’s credit application.
With respect to the duplicate accounts, defendant Trans Union deleted the 9512
account as soon as defendant FIA told it to do so. Plaintiff appears to believe that Trans
Union should have realized on its own that the 4249 account was derived from the 9512
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account, but the accounts had different numbers and different amounts. Plaintiff fails to
explain how Trans Union should have known without any information from her or FIA that
one of the accounts was a duplicate. United States v. Berkowitz, 927 F.2d 1376, 1384 (7th
Cir.1991) ("undeveloped arguments, and arguments that are unsupported by pertinent
authority, are waived").
Next, plaintiff argues that defendant “Trans Unions’ procedures are unreasonable
because its computer system does not allow a consumer’s dispute to be investigated if the
information has been previously verified by the furnisher within the previous 180 days, even
when the consumer has provided additional, new information regarding the dispute.” Plt.’s
Br., dkt. #56, at 12. Plaintiff did not propose any facts showing that Trans Union has such
a policy and Trans Union denies that it does. In any event, neither I nor a jury can evaluate
Trans Union’s procedures in a vacuum; all that matters for the purpose of § 1681e(b) and
§ 1681i are the procedures that Trans Union applied to plaintiff. Massachusetts v. EPA, 127
S. Ct. 1438, 1453 (2007) (to demonstrate standing to sue, “the party bringing suit must
show that the action injures him in a concrete and personal way”).
The facts show only that Trans Union declined to investigate plaintiff’s dispute in
November 2006, but its failure to do so was reasonable. The only reason plaintiff gave for
disputing the debt in November 2006 was that the account was “the responsibility of [her]
ex-spouse per our divorce decree,” an objection that does not require any factual
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investigation to rebut. As Trans Union explained to plaintiff in its response to her dispute,
plaintiff’s divorce decree was irrelevant to the question whether her credit report was
accurate. The divorce decree governed plaintiff’s rights with respect to her ex-husband; it
could not change any obligations she had to a third party. Plaintiff does not argue to the
contrary and she fails to identify any information she provided to Trans Union in November
2006 that should have prompted it to dig further.
With respect to defendant Trans Union’s third asserted deficiency, plaintiff cites
several cases in which courts found investigations of credit reporting agencies to be
inadequate or potentially so, but in none of the cases she cites did a court hold that an
investigation is unreasonable every time the agency fails to demand to see a copy of the
credit application. Henson v. CSC Credit Services, 29 F.3d 280, 287 (7th Cir. 1994)
(declining to dismiss complaint for failure to state claim when plaintiff alleged generally that
defendant failed to conduct proper investigation under § 1681i); Stevenson v. TRW Inc.,
987 F.2d 288, 293 (5th Cir. 1993) (affirming district court’s finding that defendant did not
delete inaccurate information promptly as required by § 1681i(a) in part because agency
relied solely on consumer dispute verification forms rather than contacting creditors
themselves after fraud was confirmed); Bryant v. TRW, Inc., 689 F.2d 72, 79 (6th Cir.
1982) (affirming jury’s verdict that agency violated § 1681e(b) when it failed to inform
furnisher of nature of consumer’s complaints); Curtis v. Trans Union, LLC, Nos. 02 C 207
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and 02 C 208, 2002 WL 31748838, *5 (N.D. Ill. Dec. 9, 2002) (concluding that it was for
jury to determine whether agency violated § 1681i when it failed to conduct investigation
after consumer told agency that debt had been eliminated by court judgment); Richardson
v. Fleet Bank of Massachusetts, 190 F. Supp. 2d 81, 88 (D. Mass. 2001) (question of
reasonableness under § 1681i was for jury when defendant had failed to investigate debt
even after consumer showed copy of discharged mortgage).
The rule of law to be taken from these cases is that agencies have a duty to investigate
the accuracy of the information provided by the creditor when the consumer gives the agency
a specific reason for doing so. Henson, 29 F.3d at 287 (credit reporting agency may have
duty “to go beyond the original source” if “consumer has alerted the reporting agency to the
possibility that the source may be unreliable or the reporting agency itself knows or should
know that the source is unreliable”). In this case, the facts do not show that plaintiff gave
Trans Union any reason to question the accuracy of any information FIA provided until
August 2007. Up until that time, plaintiff consistently objected to the report on the sole
ground that the debt had been assigned to plaintiff’s ex-husband in the divorce decree. That
is not a factual dispute, but a legal objection and a groundless one at that.
Again, everything changed in August 2007. At that point, plaintiff told defendant
Trans Union that the account “was an individual account only belonging to [her] ex-husband
prior to our marriage and CHARGED OFF in his bankruptcy.” Despite receiving notice of
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plaintiff’s dispute that the debt was from an individual account of her ex-husband’s,
defendant Trans Union did not ask defendant FIA to show that plaintiff was a co-obligor on
the account and did not tell FIA what plaintiff’s dispute was. Instead, Trans Union simply
said that plaintiff “claim[ed] inaccurate information” and asked FIA to confirm her
identification. A reasonable jury could find that such a meager effort did not satisfy its
obligations under § 1681i.
Defendant Trans Union relies heavily on Deandrade v. Trans Union LLC, 523 F.3d
61, 65 (1st Cir. 2008), for the proposition that it cannot be held liable because plaintiff’s
dispute with defendant FIA related to the validity of the debt, a legal question that could not
have been answered by Trans Union through reasonable investigation. That may have been
true before the arbitrator’s decision, but after the arbitrator dismissed FIA’s claim against
plaintiff, the legal question was resolved. Thus, when plaintiff filed her dispute with Trans
Union on August 24, 2007 (10 days after the arbitrator’s decision), she no longer owed the
debt and any credit report stating the contrary was factually inaccurate. Had Trans Union
conducted a more thorough investigation or at least informed FIA of all the facts, it might
have discovered the error.
C. Damages
1. Actual damages
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Plaintiff seeks actual damages for credit denials she received and for emotional
distress she suffered, both of which may be awarded under 15 U.S.C. § 1681o. Kronstedt
v. Equifax, No. 01-C-52-C, 2001 WL 34124783, *10 (W.D. Wis. Dec. 14, 2001) (citing
Cousin v. Trans Union Corp., 246 F.3d 359, 369 n. 15 (5th Cir. 2001), and Guimond v.
Trans Union Credit Information Co., 45 F.3d 1329, 1333 (9th Cir. 1995)). Defendants
challenge plaintiff’s right to seek both types of damages because she cannot show the
required causal connection between any violation of the Act and any credit denial and
because her evidence of emotional distress is legally insufficient.
In Anderson v. Trans Union, LLC, 345 F. Supp. 2d 963, 975 (W.D. Wis. 2004), I
concluded that when the alleged injury is a denial of credit, the standard for causation is
whether the defendant’s violation of the Act was a “substantial factor” in the denial of credit.
Accord Philbin v. Trans Union Corp., 101 F.3d 957, 968 (3d Cir. 1996). No party has
questioned that standard in this case and I see no reason to reevaluate it.
Defendants’ primary argument is that plaintiff cannot show a causal connection
because her credit reports included other adverse accounts, but I agree with plaintiff that
that is a question for the jury. The $16,000 debt from defendant FIA dwarfs the other three
accounts, the largest of which was less than $700. Because almost all of plaintiff’s bad debt
came from the inaccurate account, a reasonable jury could find it was a substantial factor in
the denial of her credit applications.
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Defendant FIA argues in one paragraph that plaintiff could not have obtained a loan
even with a clean credit report because her income was too low. Although this argument has
merit, I cannot rule on this question as a matter of law. Of the 11 creditors who denied
plaintiff’s application for a loan, only one of them listed plaintiff’s income as a reason for
denying her application. Each of the other creditors that disclosed its reasons said that it
could not give her a loan because of her poor credit history. That is sufficient to preserve
the question for the jury.
With respect to plaintiff’s request for damages for emotional distress, defendants
criticize plaintiff for relying on her own testimony, but that is an accepted method of proving
emotional injury. E.g.. Lust v. Sealy, Inc., 383 F.3d 580, 589 (7th Cir. 2004); United States
v. Balistreri, 981 F.2d 916, 932 (7th Cir. 1992). Defendants are correct that a plaintiff must
do more than declare in conclusory fashion that she was “embarrassed and humiliated,”
Wantz v. Experian Information Solutions, 386 F.3d 829, 834 (7th Cir. 2004), but plaintiff’s
testimony is much more specific than that. In her deposition, she describes the various
symptoms that she was experiencing and explains why she felt humiliated by the inaccurate
information. Plt.’s Dep., dkt #46-3, at 135-42. Her evidence is far from overwhelming, but
I cannot conclude that it is inadequate as a matter of law.
2. Punitive and statutory damages
Case: 3:07-cv-00671-bbc Document #: 101 Filed: 09/15/2008 Page 22 of 25
Page 23
23
A plaintiff may recover statutory damages up to $1,000 as well as punitive damages
if she can show that a defendant willfully failed to comply with the Fair Credit Reporting
Act. 15 U.S.C. § 1681n(a). The standard is the same as in other cases involving punitive
damages: whether the defendant knowingly or recklessly violated plaintiff’s rights, or, in
other words, whether the defendant knew of an “unjustifiably high” risk that a violation
would occur or should have known of such a risk because it was obvious. Safeco Insurance
Co. of America v. Burr, 127 S. Ct. 2201, 2215 (2007).
Although a final decision must wait for trial, I conclude that plaintiff will be entitled
to take her claim for punitive damages to the jury with respect to both defendants if she
proves up the facts she has alleged. Defendant FIA continued to report the debt even after
the arbitrator denied its claim. It is preposterous to argue as FIA does that plaintiff has not
adduced any evidence that FIA knew about the arbitration decision. Dft. FIA’s Reply Br.,
dkt. #75, at 5-6. FIA was a party to the action. Even if the company’s lawyers did not
notify everyone in the company of the decision, FIA provides no legal basis for distinguishing
its lawyers’ knowledge from that of the company. Section § 1681n(a) does not require a
plaintiff to prove that a particular company official has knowledge of a violation.
Defendant Trans Union may not have had actual knowledge that the credit report
was inaccurate, but a reasonable jury could find that it recklessly disregarded other rights
that plaintiff had under the statute. When plaintiff notified Trans Union that the FIA
Case: 3:07-cv-00671-bbc Document #: 101 Filed: 09/15/2008 Page 23 of 25
Page 24
24
account was an individual account of her ex-husband’s, it did not forward the nature of the
dispute to FIA; Trans Union simply said that plaintiff was “claim[ing] inaccurate
information.” A reasonable jury could find that Trans Union’s response was a willfull
violation of its obligation under § 1681i(a)(2)(A) to notify the creditor of “all relevant
information regarding the dispute that the agency has received from the consumer or
reseller.” Certainly, “all relevant information” includes the nature of the dispute.
ORDER
IT IS ORDERED that
1. Defendant FIA Card Services, NA’s motion for summary judgment, dkt. #49, is
DENIED with respect to plaintiff Bobbie Scheel-Baggs’s claim that FIA violated 15 U.S.C.
§ 1681s-2 by continuing to report that plaintiff was liable for the 4249 account after an
arbitrator denied its claim. The motion is GRANTED in all other respects.
2. Defendant Trans Union, LLC’s motion for summary judgment, dkt. #43, is
DENIED with respect to plaintiff’s claim that Trans Union violated 15 U.S.C. § 1681i by
failing to adequately reinvestigate plaintiff’s dispute after she informed Trans Union in
August 2007 that the 4249 was her ex-husband’s individual account. The motion is
GRANTED in all other respects.
3. Plaintiff’s motion for leave to file supplemental authority, dkt. #87, is DENIED
Case: 3:07-cv-00671-bbc Document #: 101 Filed: 09/15/2008 Page 24 of 25
Page 25
25
as unnecessary.
4. A change in the court’s schedule requires holding the final pretrial conference on
Thursday, October 2, 2008 at 4:00 pm. Motions in limine, proposed special verdict forms,
jury instructions and voir dire questions shall be filed and served by September 26, 2008.
Jury selection will be held on Wednesday, October 22, 2008 at 9:00 a.m. and trial will begin
the following day.
Entered this 15th day of September, 2008.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge
Case: 3:07-cv-00671-bbc Document #: 101 Filed: 09/15/2008 Page 25 of 25

Changes at http://mannbracken.com

2008-11-07T15:21:00.000-08:00

They have a new web site-says even less than the last one did!

Did you get a call from (301) 882-9976?

2008-11-01T16:20:00.000-07:00

It is Mann Bracken Wolpoff Abramson Eskanos Adler a collection law firm. (301) 882-9976 is the old Wolpoff Abramson number in Maryland.

All of them merged as Axiant. The Mann Bracken CIO is Jim Branton and he redid the dialer for all of the databases. This is because even though non-attorneys own Axiant, they kept the Mann Bracken plan of having attorneys manage everything.

Anyway, it is now dialing at random!

They have designated attorney Scott Kramer at (703) 245 0580 as the point of contact. He could settle debts if they called at work and pay if they run up your cell minutes.Read these blogs johnpfryedebtlawyer.blogspot.com and collectionagencyhallofshane.blogspot.com for details.

Mann Bracken + Wolpoff Abramson + Eskanos Adler = AXIANT

2008-10-27T14:33:00.000-07:00

Today's topic is Wolpoff and Abramson’s merger with another collection agency and gun for hire, Mann-Bracken.

Neither of these two companies has anything CLOSE to a good reputation.

So who are these guys and why should we care?

First up is Mann-Bracken. From Mann-Bracken’s website:

An effective use of required demand letters, telephone collections strategies, and, when appropriate or by direction, filing a law suit has marked our success. In 2001, we pioneered the use of arbitration in collection matters and have shown clients a principled and efficient means of negotiating with delinquent customers. Protecting our clients’ rights as creditors is central to all our activities. Mann Bracken employs both predictive and manual dialing campaigns and has state-of-the-art call monitoring and account auditing. MB is licensed to collect in all fifty states and employs a full time compliance team and full time trainer.

Note of course that even the name "Mann Bracken" is a little odd. In October 2008, Victor Johnson, operations manager at Mann Bracken in Atlanta told the press that Doug Mann "took his check and bailed" and that the new boss, Chris Bracken, is a real tyrant. People are afraid of being fired for even knocking on his door!

So basically, if you’ve gotten the automated collections call, it’s probably from Mann-Bracken. In addition, they “pioneered” the use of arbitration, an unsavory practice in which consumers prevail just .2% of the time. The Better Businsess Bureau reports that Mann-Bracken has an unsatisfactory rating due to “numerous unresolved complaints and failure to respond to inquiries”. Wolpoff and Abramson has an equally unsatisfactory rating with the BBB. Wolpoff and Abramson, also known as W & A, just sold a large portfolio of debt to another collections baddie, Palisades Collection. W & A also are no stranger to arbitration and have profited mightily by taking clients through the National Arbitration Forum.

To add insult to injury, Mann-Bracken just completed a merger with GA and Eskanos and Adler Concord, CA. So now we have Wolpoff and Abramson, Mann-Bracken, GA and Eskanos and Adler, a bunch of law firms that are the basis of Axiant!

From the Law Office of Lisa D. Wright

2008-10-26T13:09:00.000-07:00

Filed March 7, 2008.

The consumer alleges that Mann Bracken, LLC violated the Fair Debt Collection Practices Act by falsely stating that a lawsuit had been filed against the consumer when no lawsuit had been filed, by telling the consumer that nothing could be deleted from her credit report and then telling the consumer that the debt could be removed from her credit report, by falsely telling the consumer that if she consulted an attorney she would be told to file for bankruptcy, and by continuing to attempt to collect the debt without first responding to the consumer’s written request for validation of the debt.

Mann Bracken DEFEATED In Court!

2008-10-25T17:34:00.000-07:00

The mighty James Branton walked out with his head down and more than a few tears, he knew Chris Bracken would be furious...

http://www.websupp.org/data/NDCA/3:07-cv-03478-11-NDCA.pdf

Read about how Mann Bracken were found to be deceptive liars, and how a common person, just like YOU prevailed in court against them!

Attorney Leadership: A Case Study in Failure at Mann Bracken

2008-10-25T17:17:00.000-07:00

Blog commentary: it looks as though attorneys aren't perfect leaders. It is also interesting that Mann Bracken, now apparently Axiant, currently tries to depict itself as a 'solutions' company-would you trust them?

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Atlanta Law Firm Settles Software Piracy Claims Washington D.C., (October 31, 2000) -- The Business Software Alliance (BSA) today announced that Mann, Bracken, Layng & Knezo LLC, a law firm based in Atlanta, GA, has agreed to pay $108,679 to settle claims relating to unlicensed copies of Corel, Microsoft and Symantec software programs installed on office computers.

In addition to the settlements, the law firm has also agreed to destroy any unlicensed software, purchase replacement software, and strengthen its software management policies. Like most BSA investigations, this case began with a call to BSA's hotline: 1-888 NO PIRACY. Typically, after an initial investigation of the lead, the BSA contacts the company reported, although in some cases it pursues a software raid.

In the case of Mann, Bracken, Layng & Knezo, it voluntarily conducted a self-audit and reported the results to BSA. 'Firms ought to pay careful attention to their software management as they do to other aspects of their business,' said Bob Kruger, vice president of enforcement for the BSA, the software industry watchdog group. 'By establishing and implementing sound software management practices, law firms can avoid paying stiff penalties to BSA.

BSA received full cooperation from Mann, Bracken, Layng and Knezo and we were able to move quickly toward a resolution.' James D. Branton, of counsel to Mann, Bracken, Layng & Knezo, said, 'Mann, Bracken, Layng & Knezo has always been fully committed to software copyright compliance and once the extent of the problem became known, it took proper action to resolve the situation.'