DOCSLIB.ORG

10.5.2 Consumer's Confidential Settlement Conference Statement

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
10.5.2 Consumer's Confidential Settlement Conference Statement 10.5.2 Consumer’s Confidential Settlement Conference Statement NORMAN K.K. LAU Attorney At Law A Law Corporation NORMAN K.K. LAU 1795 820 Mililani Street, Suite 701 Honolulu, Hawaii 96813 Telephone No.: (808) 523-6767 FAX No.: (808) 523-6769 Email: [email protected] Attorney for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII PLAINTIFF, ) CIVIL NO. NO. ) Plaintiff, ) PLAINTIFF’S CONFIDENTIAL ) SETTLEMENT CONFERENCE vs. ) STATEMENT; EXHIBITS 1, 4, 12 ) UNIFUND CCR PARTNERS; ) MARVIN S.C DANG; JAE B. PARK; ) Date: DATE STUART MARTINEZ, ) Time: 10:00 a.m. ) Judge: Leslie Kobayashi Defendants. ) PLAINTIFF’S CONFIDENTIAL SETTLEMENT CONFERENCE STATEMENT A. BRIEF STATEMENT OF THE CASE This case involves the collection efforts of Defendants against Plaintiff for money and their violations of the FDCPA, H.R.S. Chapter 443B, and § 480-2 in their collection efforts. On or about May 25, 2005, Defendants contacted Plaintiff’s employer and obtained more than location information. (Exhibit 12). On or about April 25, 2005, Defendant Unifund sent 1 Plaintiff a letter demanding payment of $9,953.18 for a debt it obtained from Citibank. (Exhibit 1). At the time of this collection attempt, Unifund was not a registered collection agency in Hawaii. Defendant Unifund also failed to provide the appropriate notices required by 15 U.S.C. §1692g. Defendant Dang then sent a letter on or about April 28, 2005 demanding $9,953.18 payment for an account on behalf of Unifund. Defendants then filed a lawsuit in District Court on or about September 16, 2005 for the debt on the Account. During the course of the District Court lawsuit, the parties were ordered to mediation, Defendants refused to participate initially, and attempted to continue the trial. The parties were ordered back to mediation. Defendant Martinez, Defendant Dang’s paralegal, sent an email to Plaintiff which discussed settlement of the alleged debt. Defendant Martinez then emailed Plaintiff promising to send the billing statements to her by January 27, 2006, (Exhibit 4), but Plaintiff never received the billing statements. These email communications were false as Defendant Martinez never sent the promised statements. On or about February 23, 2006, the collection lawsuit was dismissed with prejudice. Plaintiff has incurred expenses in attempting to correct Defendants’ misguided and illegal collection activities. Plaintiff was also confused, angry, and suffered emotional distress and mental anguish as a result of Defendants’ collection efforts. B. EVALUATION OF CLAIMS AND DEFENSES Plaintiff has a strong case against Defendant Unifund for failure to comply with the FDCPA. Exhibit 1 is Unifund’s only letter to Plaintiff. It did not contain the debt validation notice required by the FDCPA and Unifund has admitted it is a debt collector subject to the FDCPA. Either Unifund or the other Defendants also contacted Plaintiff’s place of employment and obtained more than location information, as allowed by the FDCPA, causing embarrassment 2 for Plaintiff in her employment. Defendant Martinez’s false statements and his liability for same are also imputed to Marvin Dang, as his employer, and to Unifund because Unifund and Dang have admitted to being debt collectors subject to the FDCPA. See Fox v. Citicorp Credit Services, Inc., 15 F.3d 1507 (9th Cir. 1994). The FDCPA claims are almost guaranteed to be established. Plaintiff also claims that Unifund should have been licensed before it sued her because it was assigned Plaintiff’s debt for collection. Unifund, however, claims it bought the debt and, therefore, is not subject to H.R.S. Chapter 443B, which regulates collection agencies. This issue has not been ruled upon by any state court but the federal courts that have considered this argument under the FDCPA have ruled that the purchaser of a defaulted debt is still considered a debt collector. See e.g. Brannon v. United Student Aid Funds, Inc., 94 F.3d 1260 (9th Cir. 1996); Holmes v. Telecredit Service Corp., 736 F.Supp. 1289 (D.Del. 1990); Kimber v. Federal Financial Corp. 668 F.Supp. 1480 (M.D. Ala. 1987); and Pollice v. National Tax Funding, 225 F.3d 379 (3rd Cir. 2000). This may have a 70% chance of prevailing. C. SUMMARY OF PROCEEDINGS Defendants brought suit in Maui District Court and had the case dismissed with prejudice following Defendants’ failure to produce the requested documents establishing the debt was owed by Plaintiff. No motions have been filed in this case and discovery is still ongoing. D. ESTIMATED TIME FOR FURTHER DISCOVERY, ETC. Plaintiff has noticed a 30(b)(6) deposition for Unifund for December 6, 2006 and for Dang, Park, and Martinez for December 7, 2006. Counsel for the parties have conferred on objections raised by Defendants to Plaintiff’s discovery requests and some issues were resolved or narrowed. However, it appears a discovery conference or a motion to compel will be necessary. Also, I believe Defendant Unifund will seek some type of relief or an alternative to 3 producing live witnesses in Hawaii for the 30(b)(6) deposition. Plaintiff wants live witnesses and not telephone or video depositions because of the need to assess the witnesses’ credibility, demeanor, etc. in preparing for trial. Also, Defendant has filed over 38 collection lawsuits in Hawaii and has submitted to doing business in the state and has violated federal and state law in Hawaii. Also, after this case was filed, Unifund obtained an exempt collection agency license to conduct collection in Hawaii. Since it chose to do business here, Unifund should come here for the deposition. E. STATEMENT OF DEMANDS AND OFFERS AND PLAINTIFF’S POSITION ON SETTLEMENT After the underlying Maui collection suit was dismissed with prejudice, Plaintiff moved for an award of fees and costs in the amount of $2,794.29 per H.R.S. § 607-14 but the actual fees and costs incurred in defending Plaintiff in the Maui collection suit was $7,222.92. Plaintiff was awarded $500 for fees and $84.28 for costs which was paid by Unifund. The $7,222.92 figure forms the basis for Plaintiff’s actual damages in this case, See e.g. Venes v. Professional Service Bureau, Inc., 353 N.W.2d 671 (1984). It also forms the basis for the treble damages or $21,668.76 if Unifund is found to be a collection agency under H.R.S. Chapter 443B and § 480- 13(b)(1) not to mention statutory damages of $1,000 per 15 U.S.C. § 1692k(a)(2)(A). Mr. Dang’s office offered $2,000 on April 26, 2006 and a counterdemand of $15,000 was made the same day. On October 20, 2006, a demand of $20,000 for all Defendant’s or $8,000 for only the Dang Defendants was made. Defendants made an offer of $5,000 for all claims on October 26, 2006. A counter-demand of $15,000 was made on October 26, 2006. Plaintiff’s attorney’s fees and costs incurred in this case is about $18,500. Given Defendants could end up owing over 4 $50,000 in damages, fees, and costs with a 70% chance of winning the treble damage claim, Plaintiff is willing to settle this case for $35,000. DATED: Honolulu, Hawaii. November 9, 2006. NORMAN K.K. LAU Attorney for Plaintiff 5.
Load more

Recommended publications
  • Settlement Conference Tips for Judges
    Settlement Conference Tips for Judges by Morton Denlow Most cases eventually settle. The guidance offered by the judge at the settlement conference can be a big factor in how satisfied the parties are with the outcome. Judges and lawyers plow through countless Because over 95 percent of all civil cases settlement conferences each year. Often, the terminate without a trial, it is imperative that participants walk away feeling that they have bench and bar consider how to get the most wasted their time and the clients’ money, from judicial settlement conferences. This without making progress. Why? Based on my article will discuss some of the steps I take 24 years in private practice and six years on the before the settlement conference to make sure bench, I see four major reasons why settlement that everyone is ready to engage in a serious conferences fail: settlement discussion, and some of the things attorneys can do to make the negotiations • The court and counsel fail to treat a worthwhile. settlement conference as a serious and integral part of the litigation process; WHEN TO INITIATE THE TOPIC OF • Lack of preparation on the part of counsel SETTLEMENT and their clients before participating in the settlement conference; I make it a practice to raise the topic of • The unwillingness of participants to use the settlement at almost every court appearance. negotiation process as a method of resolving While I would prefer that counsel initiate their dispute; and settlement discussions on their own, this rarely • Lack of full settlement authority by client happens. I find that I enable both sides to save representatives at the settlement conference.
    [Show full text]
  • Concluding a Successful Settlement Conference: It Ain’T Over Till It’S Over
    Concluding a Successful Settlement Conference: It Ain’t Over Till It’s Over by Morton Denlow Have you ever attended a settlement conference civil cases going to trial, settlement is the and come away thinking the case was settled, predominate means by which cases are only to later find out that your adversary has a resolved.2 Although most cases are settled by different understanding of the settlement terms the parties without direct involvement by the than you and your client? This is a frustrating court, numerous cases are settled with the experience, but is completely unnecessary. assistance of the court or mediators at a Careful lawyers and judges prevent such settlement conference or court-sponsored confusion by ironing out the details of a mediation. settlement at the time an agreement is reached. Leaving specific settlement terms unresolved to This article explains the steps parties and the a later date may result in an unenforceable court should take to insure an enforceable settlement or possible litigation to enforce the settlement. By paying careful attention to all settlement.1 necessary issues for resolution at the time a settlement is reached, parties can prevent future Settlement conferences play an important role misunderstanding and conflict over the in the resolution of litigated disputes. Judges settlement terms. The principal issues parties and mediators spend numerous hours and even face at the time a settlement is reached include days working with parties to bring about a 1) monetary terms; 2) scope of releases; 3) settlement. With only 2.2 percent of all federal confidentiality of the settlement terms; 4) *This article appeared in the Fall 2002 issue of Court Review, the Journal of the American Judges Association, Volume 39.
    [Show full text]
  • SUPERIOR COURT of CALIFORNIA COUNTY of LOS ANGELES -Vii- CHAPTER Three CIVIL DIVISION RULES 43 3.1 APPLICABILITY
    SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES CHAPTER Three CIVIL DIVISION RULES 43 3.1 APPLICABILITY ...........................................................................................43 GENERAL PROVISIONS ..............................................................43 3.2 ASSIGNMENT OF CASES ...........................................................................43 3.3 ASSIGNMENT OF DIRECT CALENDAR CASES .....................................43 (a) Proportionate Assignment .....................................................................43 (b) Regulation of Case Assignment ............................................................43 (c) Notice of Case Assignment ...................................................................43 (d) Improper Refiling ..................................................................................43 (e) Duty of Counsel .....................................................................................43 (f) Related Cases .........................................................................................44 (g) Consolidation of Cases ..........................................................................44 (h) Coordination of Non-Complex Cases ....................................................44 (i) Assignment for All Purposes .................................................................44 (j) Effect of Judge Unavailability ...............................................................45 (k) Complex Litigation ................................................................................45
    [Show full text]
  • Small Claims Court Guide #6
    Getting Ready for Court Small Claims Court Guide #6 If your small claims court case is going to court - whether it's for a settlement conference, a trial conference or a trial - you probably have a lot of questions to ask. This guide will try to answer some of them. For cases started by a notice of claim, you will receive either a notice of settlement conference or a notice of trial in the mail or by email from the court registry. The notice will tell you the date, time and method by which you will be attending which will most likely be remotely by way of audioconference or videoconference (using MSTeams). The notice will also tell you when and how documents you may be referring to at the conference are to submitted to the judge and the other parties. Most cases will have a settlement conference. If your case is a motor vehicle accident case and only liability for property damage is being disputed, you will go directly to trial. You will not need to have a settlement conference. Cases started by a notice of Civil Resolution Tribunal claim will go to a settlement conference if the claim did not go through facilitation at the Civil Resolution Tribunal (CRT). A settlement conference is not required if a claim was started by filing a notice of Civil Resolution Tribunal claim and the CRT issued a certificate of completion following a final decision where all parties had made a response. Questions 1, 2 3, 5 and 6 of this guide talk about the settlement conference.
    [Show full text]
  • The Represented Client in a Settlement Conference: the Lessons of G
    University of Florida Levin College of Law UF Law Scholarship Repository UF Law Faculty Publications Faculty Scholarship 1991 The Represented Client in a Settlement Conference: The Lessons of G. Heileman Brewing Co. V. Joseph Oat Corp. Leonard L. Riskin University of Florida Levin College of Law, [email protected] Follow this and additional works at: https://scholarship.law.ufl.edu/facultypub Part of the Dispute Resolution and Arbitration Commons Recommended Citation Leonard L. Riskin, The Represented Client in a Settlement Conference: The Lessons of G. Heileman Brewing Co. V. Joseph Oat Corp., 69 Wash. U. L.Q. 1059 (1991), available at http://scholarship.law.ufl.edu/ facultypub/669 This Article is brought to you for free and open access by the Faculty Scholarship at UF Law Scholarship Repository. It has been accepted for inclusion in UF Law Faculty Publications by an authorized administrator of UF Law Scholarship Repository. For more information, please contact [email protected]. ARTICLES THE REPRESENTED CLIENT IN A SETTLEMENT CONFERENCE: THE LESSONS OF G. HEILEMAN BREWING CO. V. JOSEPH OAT CORP. LEONARD L. RISKIN* TABLE OF CONTENTS I. A HISTORY OF THE CASE WITH EMPHASIS ON THE PERSPECTIVES OF THE PARTICIPANTS ..................... 1066 A. The Dispute .......................................... 1068 B. Perspectives on Settlement Conferences ................. 1075 L Lawyer-Client Relationships: Traditionaland Participatory...................................... 1076 2. Negotiation: Adversarial and Problem-Solving ...... 1078 a. AdversarialNegotiation . ................. 1078 b. Problem-Solving Negotiation ................... 1078 3. The Role of the JudicialHost ..................... 1081 a. FacilitatingAdversarial or Problem-Solving Negotiation .................................... 1081 b. Raising a Fist or Extending a Hand ............ 1083 4. Relations Among the Perspectives .................. 1085 C.
    [Show full text]
  • Superior Court of California, County of Stanislaus
    Superior Court of California, County of Stanislaus Judges of the Superior Court Hon. Ann Q. Ameral Hon. Shawn D. Bessey Hon. Alan Cassidy Hon. Ricardo Cordova Hon. Rick Distaso Hon. John D. Freeland Hon. Valli Israels Hon. Jack M. Jacobson Hon. Nancy Leo Hon. Linda A. McFadden Hon. Dawna Frenchie Reeves Hon. Sonny S. Sandhu Hon. Stacy P. Speiller Hon. Carrie M. Stephens Hon. Ruben Villalobos Hon. Kellee C. Westbrook Hon. Robert B. Westbrook Hon. Thomas D. Zeff Jared Beeson, Commissioner Kenneth Hara, Commissioner Lynne R. Meredith, Commissioner Hugh K. Swift, Executive Officer/Jury Commissioner Stanislaus County Superior Court SUMMARY OF CHANGES Revisions effective January 1, 2021 IMPORTANT INSTRUCTIONS FOR USING THESE RULES 1. State Rules and Corresponding Local Rules The California Rules of Court are not printed as part of the Stanislaus County Local Rules, but are considered incorporated within them. Proceedings in the Superior Court of Stanislaus County (“Court”) are governed by the California Rules of Court as supplemented by these Local Rules (also referred to as “Rules”). EACH LOCAL RULE MUST BE READ IN CONJUNCTION WITH THE CALIFORNIA RULES OF COURT (CRC). 2. Purchasing Local Rules and Local Forms Copies of the Local Rules and Local Forms may be obtained online at www.stanct.org. INTERNET ADDRESS www.stanct.org 2 Stanislaus County Superior Court Table of Contents RULE 1 GENERAL .....................................................................................11 1.00 SCOPE OF RULES ........................................................................................................................................
    [Show full text]
  • Effective Lawyering in Judicially Hosted Settlement Conferences
    Journal of Dispute Resolution Volume 1988 Issue Article 3 1988 Effective Lawyering in Judicially Hosted Settlement Conferences Wayne D. Brazil Follow this and additional works at: https://scholarship.law.missouri.edu/jdr Part of the Dispute Resolution and Arbitration Commons Recommended Citation Wayne D. Brazil, Effective Lawyering in Judicially Hosted Settlement Conferences, 1988 J. Disp. Resol. (1988) Available at: https://scholarship.law.missouri.edu/jdr/vol1988/iss/3 This Article is brought to you for free and open access by the Law Journals at University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Journal of Dispute Resolution by an authorized editor of University of Missouri School of Law Scholarship Repository. For more information, please contact [email protected]. Brazil: Brazil: Effective Lawyering in Judicially Hosted Settlement Conferences EFFECTIVE LAWYERING IN JUDICIALLY HOSTED SETTLEMENT CONFERENCES WAYNE D. BRAZIL* I. INTRODUCTION ......................................... 2 II. WHOM AND WHAT TO BRING TO THE CONFERENCE .......... 2 1I1. THE PRINCIPAL TARGETS OF PERSUASION ................... 3 IV. THE PROS AND CONS OF DIFFERENT SETTLEMENT CONFERENCE FO R M A TS .... ........ .... .......... .............. 4 V. KEY CONCEPTUAL PREPARATION JUST BEFORE THE CONFERENCE 9 VI. THE MOST EFFECTIVE TONE OR STYLE ................... 11 VII. THE GLADIATORS JUST GET IN THE WAY: THE MYTH OF THE EFFECTIVENESS OF "GOOD GuY-BAD GUY" TEAMS ......... 16 VIII. THE ANALYSIS STAGE ........... ........ 17 IX. THE NEGOTIATION STAGE.. ....... 23 A. Calculated concessions to create momentum ....... 24 B. Should counsel ask the judge to articulate his assessments of the settlement value of the case before they put their first figures on the table? . ...... ...... 28 C.
    [Show full text]
  • Dispute Resolution Procedures
    Dispute Resolution Procedures A. Introduction The United States District Court for the Eastern District of New York provides in this introduction an overview of Court‐sponsored processes which may result in faster and less costly civil dispute resolution than full‐scale, formal litigation. The Court urges counsel to share this material with their clients so that together they can explore the full range of dispute resolution and case management methods available. Traditional litigation may impose substantial costs long before the trial commences. Further, the current congestion of trial calendars in Federal Courts, caused in part by the substantial criminal docket, may result in lengthy delays. In this environment, alternative processes for dispute resolution offer many advantages, including the following: Reduced time to disposition; Streamlined and less costly discovery; More effective case management (for pre‐and post‐trial matters); Increased confidentiality; Facilitation of early, direct communication and understanding among the parties of the essential issues on each side of the dispute; Preservation of ongoing party relations; Savings in trial expenses; Providing qualified, neutral experts to hear complex matters (with the parties having a role in selecting them under some processes). While this introduction describes only the programs that the Court sponsors, there are other dispute resolution procedures that have been developed in the private sector and that have proven effective in a wide range of cases. One of the Court‐sponsored options, (Court‐Annexed Arbitration) is mandatory for cases that fit the criteria and are valued at less than $150,000. However, the parties to any type of case may voluntarily refer their matter to any of the Court programs.
    [Show full text]
  • Improving Judicial Settlement Conferences
    Improving Judicial Settlement Conferences Jeffrey A. Parness* TABLE OF CONTENTS INTRODUCTION.............................................................................................. 1891 I. CRITIQUES OF JUDICIAL SETTLEMENT CONFERENCES...................... 1892 II. IMPROVING JUDICIAL SETTLEMENT CONFERENCES ......................... 1898 CONCLUSION ................................................................................................. 1908 INTRODUCTION Legal academics have long asked how judicial civil case settlement conferences “can be conducted to maximize their usefulness without seriously threatening the appropriate role of judges in formal adjudication.”1 Some have found the threats so significant and the benefits so speculative that they conclude there should be very few, if any, judicial settlement conferences.2 Though the numbers of such conferences likely will, and should, continue to grow, certain warnings by the critics must be heeded. Even the most ardent supporters of increased managerial judging have expressed concerns about the absence of written guidelines to govern judicial settlement conferences.3 While judicial settlement conferencing is here to stay, far too often it is undertaken with unbounded, unbridled, and virtually unfettered trial * Professor of Law, Northern Illinois University College of Law. B.A., Colby College; J.D., The University of Chicago Law School. Thanks to Josh Smith, 3L at NIU, for his help. 1 Carrie Menkel-Meadow, Essay, For and Against Settlement: Uses and Abuses of the Mandatory Settlement Conference, 33 UCLA L. REV. 485, 486 (1985). 2 See, e.g., Owen M. Fiss, Comment, Against Settlement, 93 YALE L.J. 1073, 1075 (1984) (characterizing settlement as “a highly problematic technique for streamlining dockets”); Jonathan T. Molot, An Old Judicial Role for a New Litigation Era, 113 YALE L.J. 27, 90 (2003) (“[W]e should abolish, or at least substantially revise, .
    [Show full text]
  • Settlement Conference Techniques: Caucus Do’S and Don’Ts
    Settlement Conference Techniques: Caucus Do’s and Don’ts by Morton Denlow A settlement conference can be divided into a judge confronts during the caucus phase and three distinct phases: 1) joint initial session; 2) suggests steps a judge should take to further a separate caucus with each party; and 3) joint settlement agreement. concluding phase.1 The caucus phase is the most challenging and the most important. This THE INITIAL CAUCUS is when the judge meets separately with each party to explore their underlying concerns, to Prior to the settlement conference, the parties discuss the merits of the dispute, to develop exchange written settlement proposals in the settlement options, and to obtain the next form of an itemization of damages, a written settlement proposal for presentation to the other settlement demand supported by a brief side. During the caucus the judge must exercise statement of reasons from the plaintiff, judgment and develop strategies to move the followed by a written offer and brief statement case towards settlement. In the caucus, the of reasons from the defendant.2 Copies of the judge engages each party in confidential letters are submitted to me in advance of the discussions to determine their settlement goals settlement conference. and evaluate whether and how those goals can be achieved. Oftentimes, the merits of the case In order to underscore the importance of the recede into the background while other settlement process, I conduct the initial joint concerns such as the emotional and financial session at one of the counsel tables in the stress of the litigation process come to the courtroom.
    [Show full text]
  • Local Rules Effective January 1, 2016
    SUPERIOR COURT OF CALIFORNIA COUNTY OF CONTRA COSTA LOCAL RULES OF COURT EFFECTIVE JANUARY 1, 2016 Local Rules of the Superior Court of California, County of Contra Costa TABLE OF CONTENTS Title One. General Governance of Judicial and Non-Judicial Court Operations ................................................................................................................................ 11 Chapter 1. Administrative Rules ................................................................................................. 11 Rule 1.1. Adoption and Amendment of Rules (Rev./Eff. 1/1/15) ...................................................... 11 Rule 1.2. Department Designations (Rev./Eff. 1/1/15) ....................................................................... 11 Rule 1.3. Presiding Judge (Rev./Eff. 1/1/15) ...................................................................................... 11 Rule 1.4. Executive Committee (Rev./Eff. 1/1/15) .............................................................................. 12 Rule 1.5. Definition of Vacation for Judge (Rev./Eff. 1/1/15) .............................................................. 12 Chapter 2. Media Coverage ........................................................................................................ 12 Rule 1.20. Media Coverage (Rev./Eff. 1/1/15) .................................................................................... 12 Rule 1.21. Requests for Coverage (Rev./Eff. 1/1/15) ........................................................................
    [Show full text]
  • Getting the Most from Your Small Claims Settlement Conference
    Getting the most from your small claims settlement conference Contents Why do I have to attend a settlement conference?..................................................... 1 Audio and video settlement conferences .................................................................... 2 Who must attend? ...................................................................................................... 2 How can I prepare? .................................................................................................... 3 What will happen at the Settlement Conference? ....................................................... 5 What if I need an interpreter? ..................................................................................... 7 Other chances to settle............................................................................................... 8 Formal offer to settle .................................................................................................. 8 What if I Need to Change the Date of the Settlement Conference? ............................ 8 Settlement Conference Checklist ............................................................................... 9 Law – the Small Claims Act and Small Claims Rules ............................................... 10 Helpful Resources .................................................................................................... 10 Why do I have to attend a settlement conference? A settlement conference is usually your first court appearance in a small claims
    [Show full text]