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Saturday, November 19, 2011

Stench of Sewer Service Lingers

Coble v. Cohen and Slamowitz LLP
U.S. DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
The New York Law Journal  -  November 8, 2011
Creditors/Debtors  -  Judge Vincent L. Briccetti

Law firm Cohen & Slamowitz (CS) collects defaulted credit card debts using supporting affidavits of service from Midlantic Service Inc. It sued Coble and her coplaintiffs between 2002 and 2005. It was not until October 2006—in a federal case—that C& S learned of the Vega Affidavit in which a former Midlantic process server stated that Midlantic falsified thousands of affidavits of service between 1995 and 2006. Despite knowledge of Midlantics' fraudulently prepared affidavits since 2006 C&S continued to assert their accuracy in collection default judgment enforcement proceedings. Plaintiffs learned of the Vega Affidavit in 2010. The court denied dismissal of their 2011 suit for Fair Debt Collection Practices Act (FDCPA) violations. Coble's action was timely filed within the FDCPA's one-year statute of limitations, and equitable tolling applied to her coplaintiffs' claims. Because plaintiffs had no reason to doubt the authenticity of Midlantic's affidavits until they discovered the Vega Affidavit, C& S's conduct prevented them from timely discovering their FDCPA claims. Further, by continuing to enforce collection actions based on Midlantic's affidavits, C& S intentionally kept plaintiffs ignorant of information essential to pursuit of their claims.

DECISION
Elizabeth Coble, Milagros Harper, and Dennis Harper, on behalf of themselves and others similarly situated, Plaintiffs v. Cohen & Slamowitz, LLP, David Cohen, Esq., Mitchell Slamowitz, Esq., Leandre John, Esq., and Crystal S.A. Scott, Esq., Defendants, 11 CV 1037 (VB)
U.S. District Court, Southern District  11 CV 1037 (VB)  -  New York Law Journal November 8, 2011
Cite as: Coble v. Cohen & Slamowitz, LLP, 11 CV 1037 (VB), NYLJ 1202524715212, at *1 (SDNY, Decided October 31, 2011)  -  District Judge Vincent L. Briccetti  -  Decided: October 31, 2011

MEMORANDUM DECISION  -  Plaintiffs Elizabeth Coble, Milagros Harper, and Dennis Harper bring this action pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. §§1692 et seq. ("FDCPA"). Now pending is defendants' motion to dismiss the complaint (Doc. #9), which, for the following reasons, is denied. The Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §1331.

BACKGROUND -  For purposes of ruling on a motion to dismiss, the Court accepts all factual allegations of the complaint as true. Defendant Cohen & Slamowitz, LLP ("C& S") is a large consumer collection law firm. C& S collects defaulted credit card debts in New York State courts using affidavits of service provided by Midlantic Service, Inc. ("Midlantic") in support of applications for default judgments.  Plaintiffs sue on behalf of themselves and all others similarly situated. Plaintiffs were sued by defendants in state debt collection actions commenced between 2002 and 2005. Defendants filed Midlantic affidavits of service in each action and obtained default judgments against each of the plaintiffs.  Plaintiff Elizabeth Coble had a default judgment entered against her in 2005. Ms. Coble learned about this default judgment for the first time in mid-2009.

Plaintiff Milagros Harper also had a default judgment entered against her in 2005. Plaintiff Dennis Harper had a default judgment entered against him in 2002. The complaint does not state when the Harpers learned of the default judgments against them.  On October 15, 2005, C& S was sued in the Eastern District of New York for violating the FDCPA. See Caprino et al v. Cohen & Slamowitz, LLP et al., No. 05 Civ. 04814 (E.D.N.Y.). During the course of that lawsuit in October, 2006, C& S became aware of a sworn affidavit of a former Midlantic process server, Kenneth Vega, stating that Midlantic had falsified thousands of affidavits of service between 1995 and 2006 ("Vega Affidavit"). Vega explained that Midlantic followed an illegal but streamlined practice aimed at producing as many affidavits as possible in order to maintain its business relationship with C& S. This practice included no attempts at service before making effective service by the "nail & mail" method; making false references to neighbors; and forgery and false notarization of the process server's signature.  The Vega Affidavit states that the practice of fraudulent service was a company-wide policy implemented with regard to all affidavits submitted on behalf of C& S. Although C& S has had knowledge of the fraudulently prepared affidavits of service since 2006, it continues to enforce the collection actions relating to those judgments. C& S has not reviewed the judgments it obtained based on Midlantic's service and has not informed the courts or consumers that it did not have good faith bases to assert the veracity of the Midlantic affidavits on file.  Nonetheless, defendants have continued to affirmatively assert the veracity of the Midlantic affidavits in the course of enforcing the default judgments. When consumers have raised lack of service as a defense to collection, C&S has filed sworn affirmations by its attorneys citing the Midlantic affidavits as proof of service. Plaintiff Coble filed an order to show cause on September 7, 2010, alleging she had never been served, and C&S responded with such an affirmation.1  Plaintiffs first became aware of the Vega Affidavit in the middle of 2010. They filed this action on February 15, 2011.

DISCUSSION -  The function of a motion to dismiss is "merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Ryder Energy Distrib. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984). When deciding a motion to dismiss, the court must accept all well-pleaded allegations as true and draw all reasonable inferences in favor of the pleader. Ilishon v. King, 467 U.S. 69, 73 (1984). The complaint must contain the grounds upon which the claim rests through factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A plaintiff is obliged to amplify a claim with some factual allegations to allow the court to draw the reasonable inference that the defendant is liable for the alleged conduct. Asheroft v. Iqbal, 129 S. Ct. 1937 (2009).  The FDCPA prohibits debt collectors from engaging in unfair collection practices, including making a "false, deceptive, or misleading representation," 15 U.S.C. §1692e, and using "unfair or unconscionable means" to attempt to collect a debt, 15 U.S.C. §1692f.

I. Statute of Limitations -  A claim for violations of the FDCPA may be brought "within one year from the date on which the violation occurs." 15 U.S.C. §1692k(d).  Defendants argue that plaintiffs' allegations fall outside of this time period because the default judgments in the underlying state court cases were entered between 2002 and 2005.  Plaintiffs plausibly allege defendants violated the FDCPA when they applied for default judgments against plaintiffs. See, e.g., Gargiulo v. Forster & Garbus Esqs., 651 F. Supp. 2d 188, 191-92 (S.D.N.Y. 2009) (FDCPA applies to statements in affidavits submitted by law firm in default judgment application); Hasbrouck v. Arrow Fin. Servs. LLC, 2010 WL 1257885, at *1-3 (N.D.N.Y. Mar. 26, 2010) (FDCPA applies to statements in affidavits submitted by debt collector in default judgment application). If defendants' last violations of the FDCPA occurred when they obtained default judgments against plaintiffs—in 2005 at the latest—they are time-barred absent equitable tolling.  However, plaintiffs argue that their cause of action includes the continuing acts and omissions of C&S in connection with the invalid Midlantic affidavits. Plaintiffs claim defendants violated the FDCPA within the last year by affirmatively misrepresenting the Midlantic affidavits as true and proper, concealing their knowledge of the falseness of the affidavits, and continuing to collect on the underlying judgments. Although plaintiffs claim in their opposition papers that these violations occurred within the one-year statute of limitations with respect to each plaintiff, the complaint alleges a specific action on the part of C&S within the one-year statute of limitations only with respect to Ms. Coble. Therefore, Ms. Coble's action is not time-barred.  However, because the complaint does not specifically allege defendants violated the FDCPA with respect to Milagros and Dennis Harper within a year of the commencement of this action, their claims will be barred by the statute of limitations unless equitable tolling applies.

II. Equitable Tolling- Equitable tolling applies in extraordinary circumstances where plaintiffs show: (1) defendant concealed the existence of plaintiffs' cause of action; (2) plaintiffs remained ignorant of that cause of action until some point within the limitations period; and (3) plaintiffs' continuing ignorance was not due to lack of diligence. Sykes v. Mel Harris and Assoc., LLC, 757 F. Supp. 2d 413, 422 (S.D.N.Y. 2010) (citing New York v. Hendrickson Bros, Inc., 840 F.2d 1065, 1083 (2d Cir. 1988)). Equitable tolling applies to FDCPA claims in appropriate circumstances. Somin v. Total Cmty. Mgmt. Corp., 494 F. Supp. 2d 153, 158 (E.D.N.Y. 2007).  The concealment element is met when plaintiffs show either that the affirmative acts of defendant prevented discovery of plaintiffs' claim or that the wrong itself was self-concealing. New York v. Hendrickson Bros, Inc., 840 F.2d at 1083.  Plaintiffs first argue defendants actively and knowingly concealed the fact that the Midlantic affidavits and attorney affirmations referencing them were false and improper.2 In those instances where a consumer raised lack of service as a defense, defendants affirmatively re-asserted the validity of the Midlantic affidavits they knew to be false.  Moreover, defendants are still attempting to collect on the default judgments. Continued collection potentially legitimizes those judgments and conceals the fact that C&S can no longer maintain a good faith belief in their validity. Because plaintiffs had no reason to doubt the authenticity of the Midlantic affidavits until they discovered the Vega Affidavit, defendants' conduct prevented plaintiffs from discovering their claims under the FDCPA in a timely manner.  Defendants dispute plaintiffs' allegations of fraudulent concealment in two ways. Defendants first argue that they were not on notice that the Midlantic affidavits were falsified with respect to the named plaintiffs because the Vega Affidavit does not specifically reference those plaintiffs. They characterize the affidavit as a fabrication by a lone process server seeking to avoid personal liability in an unrelated case. This argument is irrelevant at this stage, where the Court accepts plaintiffs' allegations as true. The Vega Affidavit clearly states that Midlantic's illegal practices were pervasive, and defendants were on notice of these practices as of 2006.  Defendants next argue they have not engaged in fraudulent concealment because they have done nothing to conceal the Vega Affidavit and the prior litigation against them is public knowledge.3 However, plaintiffs claim the Vega Affidavit was not available on PACER until this lawsuit was filed, nor is there any reference on the Caprino v. Cohen & Slamowitz docket that would provide a consumer with knowledge of the Vega Affidavit's contents. Plaintiffs argue they had no reason to suspect that the Midlantic affidavits were fraudulent and could not have discovered such information until they became aware of the Vega Affidavit in 2010. Thus, they could not have discovered, even upon reasonable exercise of diligence, that the affidavits were false and improper. By continuing to enforce the collections actions based on those affidavits, defendants intentionally kept plaintiffs ignorant of information essential to the pursuit of their claims.

Plaintiffs have sufficiently alleged that defendants were on notice that any default judgments based on the Midlantic affidavits were potentially fraudulent as of 2006. They have also plausibly alleged that by failing to investigate the fraudulent practices of its process service company and continuing to enforce those judgments, defendants violated the FDCPA and concealed that violation in the process.  In addition to showing that defendants concealed plaintiffs' cause of action, plaintiffs must also show that their continuing ignorance was not due to a lack of diligence. Plaintiffs argue that because they had no way of knowing that the Midlantic affidavits were falsified, they could not have engaged in due diligence until they became aware of the Vega Affidavit after meeting with counsel in 2010.  Defendants argue that plaintiffs could have learned of their injury if they had inquired into whether any default judgments had been entered against them prior to 2010. This argument does not reflect the practices of a reasonably diligent consumer. See, e.g., Thompson v. Metro. Life Ins. Co., 149 F. Supp. 2d 38, 52 (S.D.N.Y. 2001) (media coverage and prior lawsuits are not sufficient to establish that plaintiffs should have known of their injuries).  Plaintiffs allege that neither the Vega Affidavit nor any other public disclosure of Midlantic's fraudulent practices were available on the court's electronic databases until the commencement of this action. Thus, no amount of diligence, even with knowledge of the default judgments and supporting affidavits of service, would reveal the FDCPA violations alleged in the complaint.  Because the purpose of a motion to dismiss is merely to assess the legal sufficiency of the complaint, the Court will not weigh the factual evidence at this time. The complaint contains specific allegations that defendants were on notice of the falsity of the Midlantic affidavits and continued to enforce those collections actions despite this knowledge. Plaintiffs have thus plausibly alleged a violation of the FDCPA. Because plaintiffs have also alleged that defendants' conduct concealed plaintiffs' cause of action, equitable tolling applies and dismissal is unwarranted.

CONCLUSION-  For the foregoing reasons, the Court DENIES defendants' motion to dismiss the complaint (Doc. #9).  The Clerk is instructed to terminate this motion.

  • 1. Plaintiffs Milagros and Dennis Harper do not allege that C&S affirmatively cited Midlantic affidavits in relation to their collections actions.
  • 2. Claims of fraudulent concealment are subject to the requirements of Rule 9(b), which provides that plaintiffs claiming fraud must allege the fraud or mistake with particularity. Fed. R. Civ. P. 9(b). Plaintiffs' complaint contains detailed allegations of defendants' fraud sufficient to satisfy the pleading standards of that rule.
  • 3. Defendants do not argue that plaintiffs' claims are identical to those asserted by the plaintiffs in Caprino v. Cohen & Slamowitz. Thus, they do not argue that plaintiffs were on inquiry notice as of the filing of that suit and the Court will not address that argument. See Weiss v. La Suisse, Societe D'Assurances Sur La Vie, 381 F. Supp. 2d 334, 337-39 (S.D.N.Y. 2005).

19 comments:

Anonymous said...

It's nice to read about this sleazy law firm again. Why are they still allowed to practice law?

Anonymous said...

This firm is even more crooked than 'sewer service'

They have gotten default judgments in the 9th JD under Scheinkman without even to have a court proceeding.

Can this have only happened there?

How many more victims are out there who don't even know that they were served and had a default judgment issued against them? Not only were they never served, but even if they found out about a possible court proceeding, there would be no way for them to have appeared in court because there was no court proceeding. Who would even know if an actual judge even signed a judgment?

Just another chapter in the never ending saga of justice in NY.

Anonymous said...

Just another game in the gutter of NY "law" abiding "officers of the court" - a total joke!

Anonymous said...

The sewer is the NY Court system. There is no justice; most judges are rubber stamps for their crony hacks; the Appellate Division is a rubber stamp for the corrupt judges; and the Chief Judge Lippman a reprobate. The law is constantly changing to be whatever the judges want it to be.

Anonymous said...

First these lawyer are not the only ones, there are many more and some very big white shoes firms practice this type of law and get away with it because of who they are! This is just one part of the corruption that is endemic to the court system in total. Meanwhile, Jonathan Lippman fiddles while everything is burning down around him. Wonder if he and his friends are shorting the court system to make a few more bucks on top of all they have raked in already?

Victim of C & S too!! said...

I filed criminal complaints with the FBI, against David Cohen & Mitchell Slamowitz..Hum, I wonder what ever happened with the complaints!! I was a victim of C& S...they sued me as well in the District Court..I was served via sewer service...C & S tried to get a default judgment against me using trickery..I fought them long and hard and they eventually withdrew their complaint with prejudice!!

Anonymous said...

I was sewed by C & S, via sewer service..they violated several FDC laws, they used trickery in hopes of getting a default judgment against me..example, they wanted me to sign a stip agreement...If I agreed to do such, they told me that I didn't have to go to Court to answer the complaint...however, they were still going to get a default judgment against me as COLLATERAL.... they are beyond CROOKS!!

Anonymous said...

At least you got served.

Maybe they figured out they could just bypass that part and never serve and then get a judge in the 9th JD to just sign a default judgment. That way they could just avoid the messy problem of actually having to pretend that they were complying with the laws.

Anonymous said...

I presented documentary proof to the NYC Dept of Consumer Affairs who licenses process servers - but they think their job is to protect unscrupulous process servers, just as the Committee on Judicial Conduct thinks their mandate is to protect unethical judges.

That is frightening that the stench goes all the way to the appellate division but I think that may be true.
Why is this allowed to go on. So many know about it. Where is the NY Times?
We syre can't rely on NYLJ, remember a few years ago how they whitewashed what was going on in Westchester Supreme Court with a benign front page headline about rearranging the matrimony part when the text revealed complaints of dishonesty by judges and other credible witnesses against the administrative judge.

Where was the US Atty, the FBI, the D.A., all of who apparently looked the other way and did not even investigate these shocking and credible appearing allegations. I know they read the Law Journal. It is amazing.

My hope is that one day someone close to them will be victimized by one of these judges - and then, and only then, will then act. I sure hope it happens soon.

Anonymous said...

Cohen and Slamowitz are a part of this New York Court system. These cases are already decided between the judges and C $ S.This is a criminal crime ring.
I know because my ex husband is also one of the ring leaders.I am rendered unable to access NY courts.
Back to C & S.My ex Michael Figat took out a bunch of phony identities on me w/o me knowing.
One of them was used by him to take out a Bank of America credit card using my name. When I found out.He closed the account left a balance.I got letters from and a Judgement filed against me in Suffolk County Clerks office.
Knowing what I know.These letters judgements are all invalid.Inside scoop.They are all being signed and filed by my ex Michael R.Figat.Who is not an attorney but a car salesmen/Conman.I know his handwriting.He may mix his capital w lower case etc.I know his pen stroke.Anybody with a C &S judgement or summons.Go to court and verify the signature of an attorney who signed them.IT IS MY EX ABOVE SIGNING.For Judges, Police,Sheriffs, Bank VPS.DITTO MORTGAGE DOCUMENTS.
HELP EXPOSE THIS.I HAVE THE DOCUMENTS.There is more to come.

Anonymous said...

To the above writer...HOLY MOLY!!!

Anonymous said...

Oh, and another thing....one of C & S lawyers by the name of Crystal Scott showed up...then on another Court visit another Crystal Scott showed up...2 different woman with the same name...WTF!!!

Anonymous said...

Be advised that most service is bogus! People don't know and the lawyers are not going to say anything becasue they're part of the crime

Anonymous said...

Sewer service, fraud and debtors prisons. How lovely..

http://finance.yahoo.com/blogs/daily-ticker/return-debtors-prisons-collection-agencies-now-want-deadbeats-172417607.html

Anonymous said...

I suppose when the fiat currency finally defaults, everybody will be debtor or left with nothing..

Anonymous said...

Flushed in the toilet of your own making.. Now that's JUSTICE..

Anonymous said...

TeeHee,

Ya stole from the wrong HOUSE!!

Anonymous said...

It's the old story, a lawyer knows the law, but a lawyer who knows the Judge WINS, that's the way the corrupt system currently called the Justice System works, pay to play

Anonymous said...

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               Video of 1st Hearing on Court 'Ethics' Corruption
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