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Chapter 3

Debt Collection Depositions and Memoranda (CT)

Joanne S. Faulkner is in solo practice in New Haven, Connecticut, restricted to consumer matters, preferably for persons who cannot afford to pay a lawyer. She is a past chair of the Consumer Law section of the Connecticut Bar Association and currently editor of its newsletter. She was a member of the Federal Reserve Board's Consumer Advisory Counsel, and has served on advisory committees to the Connecticut Law Revision Commission. She was on the Board of Directors of the National Consumer Law Center and is presently a trustee thereof. Ms. Faulkner frequently lectures for the Connecticut Bar Association on consumer laws, and has assisted NCLC in updating various manuals, including its Fair Debt Collection, Odometer Law Manual, Equal Credit Opportunity Manual, Fair Credit Reporting Act Manual and supplements. Her successes include Connecticut v. Doehr, 111 S.Ct. 2105 (1991) (due process, prejudgment attachments) and Clomon v. Jackson, 988 F.2d 1314 (2d Cir. 1993) (FDCPA violated by attorney who allows collection agency to use his name.). Ms. Faulkner is a graduate of Cornell Law School (LL.B. 1963), admitted to practice in New York in 1963, and in Connecticut in 1967. Section 3.1 is a deposition of a collection lawyer involved in collecting the plaintiff consumers account and 3.2 is the deposition of the collection lawyer who is the owner of the collection firm that employed the first lawyer deposed. The depositions illustrate some of the difficulties of determining basic facts in a debt collectors depositions. Section 3.3 is a memorandum in support of a motion for partial summary judgment in another FDCPA case. It argues that the check collector violated the Fair Debt Collection Practices Act and the Connecticut debt collection statutes by alleging illegally excessive charges were due,1 by falsely threatening criminal and civil proceedings,2 and by threatening to obtain personal information from the state department of motor vehicles from the consumers social security number. Section 3.4 is a reply memorandum in support of summary judgment on the same issues and alleging additional violations: failure to disclose a second alleged creditor involved in the alleged debts and seeking restitution when the amount of the collectors claim included illegal collection charges. The reply memorandum also states that the consumers claims for deception satisfy the state law requirement of ascertainable loss and argue for punitive damages under state law. A memorandum of law in support of summary judgment in another suit involving different alleged debts is in 3.5. It alleges violations of the Fair Debt Collection Practices Act and state debt collection statutes by collecting without a state debt collection license, contacting a consumer known to be represented by counsel, demanding excessive amounts, and threatening to sue on a time barred debt. The argument that unlicensed collection violates the FDCPA is an uphill battle.3

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See National Consumer Law Center, Fair Debt Collection Practices 5.5.3.2 (5th ed. 2004) See Id. 5.5.7, 5.5.9. 3 See National Consumer Law Center, Fair Debt Collection 5.5.8.5 (5th ed. 2004).

3.1 Deposition of Collection Lawyer (PDF format)

v. BRANDON

September 5,2003

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UNITED STATES DISTRICT COURT

Plaintiff, -versusMARVIN BRANDON, Defendant.

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Civil Action
3: 02CV 1537 (AVC)

Deposition of MARV BRANDON, taken pursuant to the Federal Rules of Civil Procedure, at the law offices of KLEBAN & SAMOR,, Southport, Connecticut, before Lynn Muscatello, a Notary Public in and for the State of Connecticut on September 5, 2003, at 1:12 p.m.

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APPEARANCES: For the Plaintiff 3 Joanne S. Faulkner, Esquire

M A R V I N B R A N D 0 N, of JBC & Associates 2 Broad Street, Bloomfield, New Jersey 07003, called as a witness, having been first duly sworn by Lynn Muscatello, a Notary Public in and for the State of Connecticut, was examined and testified as follows: DIRECT EXAMINATION BY MS. FAULKNER: Q. Will you state your name and business address, please. A. Marvin Brandon, B-R-A-N-D-0-N. I'm at the address of JBC & Associates, P.C., 2 Broad Street, 6th Floor, Bloomfield, New Jersey 07003. Q. How long have you been with JBC? A. JBC and Associates, P.C., about two years. Q. Have you been with any other JBC entity? A. Yes. Q. How long were you with the other JBC entity? A. I started there in January of 1999. Q. And what was the name of that entity? A. JBC and Associates, P.C. I'm sorry, JBC and Associates, Inc. Q. What was the purpose of the name change
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New Haven, Connecticut 065 1 1 By: JOANNE FAULKNER, ESQ., of Counsel

For the Defendant:

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Kleban & Samor, P.C. Southport, Connecticut 06490

By: SABATO FIANO, ESQ., of Counsel


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STIPULATIONS IT IS HEREBY STIPULATED AND AGREED by and between counsel for the respective parties hereto that all technicalities as to proof of the official character before whom the deposition is to be taken are waived. IT IS FURTHER STIPULATED AND AGREED by and between counsel for the respective parties hereto that the deposition may be signed before any Notary Public. IT IS FURTHER STIPULATED AND AGREED by and between counsel for the respective parties hereto that all objections, except as to form, are reserved to the time of trial.

from Inc. to P.C.? A. I really can't comment on that. I don't know why it was changed. Q. Was JBC, Inc., a collection agency? A. Yes. Q. And was JBC P.C., a law firm? A. JBC and Associates, P.C., is a law firm. Q. Does JBC, Inc., still exist? A. No. I'm sorry. It may exist. It's not functioning. In other words, I can't comment because I really don't know what the situation is. I'm an employee of JBC and Associates, P.C. I was an employee of JBC and Associates, Inc. Q. Were you an owner in either one of those entities? A. No. Q. Were you a partner in either one of those entities? A. No. Q. Who owned JBC, Inc.? A. I don't know who owned the stock. Q. Who was -A. -- It was a corporation. I don't know who owned the stock. Q. Who was the president?
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A. Jack Boyajian. Q. Who were the other officers? A. He was the only officer I knew. Q. You said you got a job there in January 1999; how did you acquire that job? A. Through a newspaper ad. Q. What did the newspaper ad say? A. Oh, I don't recall. This goes back. Q. Was it an ad for a lawyer? A. Yes. Q. Was it an ad with a lawyer for collection experience? A. I don't recall. Q. Who was the owner of JBC, P.C.? A. Jack Boyajian is a principal. Q. Is there other principals? A. I can't give you an answer to that because I don't know. I assume he's the only principal. Q. What does JBC stand for? A. I don't know. It's just initials. Q. Are you a full-time employee? A. Yes. Q. Do you have an outside practice of law? A. I do some collection work for myself
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Q. Have you been there? A. No. (Discussion off the record.) Q. Do you recognize the name Dan Wagner (phonetically)? A. Dan Wagner? Q. Right. A. No. Q. How many employees are at the California office? A. I have no idea. Q. Does Mr. Boyajian spend most of his time in California, or is he in the east? A. He spends the majority of his time in New Jersey. Q. How often does he go to the California office? A. There is no specific day that he goes out there. During the month I guess he goes out there when he needs to. Q. What is the purpose of having a California office? A. I don't know. Q. Is that required for licensing in California?
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outside of the firm. Q. Do you have a firm name? A. No. I use my own name. My own letterhead. Q. Where were you admitted to practice? A. I'm admitted to practice in New Jersey, Florida, and New York. Q. Is Mr. Boyajian an attorney? A. Yes. Q. Do you know where he went to law school? A. 1 believe he went to Rutgers. Q. When did he became an attorney? A. 1 don't know the date. Q. Five years ago, two years ago, do you have any idea? A. It would be, on speculating, two or three, three years ago at least. Q. And where is he admitted to practice? A. California. Q. So you think he's been admitted to practice from California for a couple of years? A. Yes. Q. JBC and Associates has an office in California? A. Yes.

A. I don't know. Q. Does Mr. Boyajian ever use any other name other than Boyajian? A. Not to my knowledge. Q. Does he use the name Boyd? A. Not to my knowledge. Q. You also have an office in Boston according to the letterhead. Have you been there? A. No. Q. How many people are employed at the Boston office? A. I have no idea. Q. Who would know those things about the employment information? A. Mr. Boyajian. Q. Who is located at your Boston office? A. There is one attorney that I know of. I don't know his name. Q. I take it you haven't met him since you don't know his name? A. I never met him. I've never been to the Boston office, no. Q. There is also a New York office; have you been to the New York office? A. No.
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Q. Who is located in the New York City office? A. Oh, I don't know. Q. Do you recognize the name Carty (phonetically)? A. No, not offhand. Q. How many lawyers are at the New Jersey office? A. Two. Q. And who are they? A. Jack Boyajian and myself. Q. Is Jack Boyajian admitted in New Jersey? A. No. Q. Does his name appear on the letterhead as being admitted in New Jersey? A. No. Q. How many employees do you have at the New Jersey office? A. I would -- I shouldn't guess. Total employment I would assume is around -- offhand I guess would be about a hundred. Q. What categories do those employees fall into? For instance, bookkeeper, collector, administrator? A. There is some in the administration,

Q. Are you there all day everyday? A. No. Q. What are your hours? A. Nine to five thirty usually. Q. Is that Monday through Friday? A. No. At present I'm only working three days a week. Q. Which three days? A. It depends. It varies; let's put it that way. That's the best answer I can give. It depends on whether I have to go to court or not. Convenience of the firm, my convenience. So it varies from week to week. Q. What would be a typical day for you at the office? A. I'm responsible for handling letters from attorneys concerning collection of debt. Letters and faxes that come in, I respond to them. Whenever an attorney calls, the call is sent to me. So I respond to attorneys legally. Q. Are you responding to people who are collecting for JBC, or are you responding to opposing attorneys or both? A. Opposing attorneys. Sometimes when attorneys are collecting for us and they have a
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there are people who do collection work, and two attorneys. Q. Is there a manager for that office? A. Yes. Q. Who is that? A. Steve. I forgot his last name. Q. What are his job duties? A. I don't know. Q. What does the premises look like? A. They occupy the full sixth floor of a seven-story building. Q. Do you have your own office? A. Yes. Q. Do the collectors each have their own office? A. No. Q. What does the collector's part of the building, of the floor, look like? A. They have individual desks with phones and dividers on the floor. Q. What do you mean dividers on the floor? (Discussion off the record.) Q. Like six-foot-high partitions with all the collectors in one big room that's partitioned? A. Yes. Like you see in high buildings.

question, the call would be put into me. Q. So the staff has instruction that whenever a attorney calls, the call is to be switched to you? A. Yes. Q. Do you have any training responsibilities at the office? A. No. Q. Who does the training for the collectors? A. I don't know offhand. Q. Have you ever -A. -- I don't get into that area usually. Q. Have you yourself been trained after you got to this office in collection law? A. No. Q. Have you joined any organizations that would be involved with collection law? A. I belong to the ACA, American Collectors Association, map attorney, map branch. Q. Does JBC belong to the regular branch? A. No. I just belong to it as a representative of JBC. Q. Does Mr. Boyajian belong to either branch? A. No. It's all questions of maps.
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Q. Have you had any other training in FDCPA'.


A. I've had experience from collection work prior to my coming to JBC. Q. What type of collection work does JBC do? A. The majority of it is bad checks. Q. Would it be fair to say that that's a specialty of JBC, collecting bad checks? A. It might. Q. What other types of collection does JBC do? A. The majority of it is bad checks. We do some other collection work, but I would say the majority is bad checks. Q. Does JBC buy the bad checks? A. In some instances we work as an agent or an attorney for the client. In some instances -well, no, JBC itself does not buy bad checks. We work as an attorney for clients. Q. Who are some of your typical clients? A. Some typical clients would be Toys R Us, cvs. Q. Can you think of any others? A. CVS Drugs, Toys R Us. There are some other clients, but offhand I can't -- Wilson Suede, Marshalls, Blockbuster.
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Q. That's fine. Do you have any supervisory responsibilities as far as the collectors are concerned? A. No. Q. Who supervises the collectors? A. Steve. And I forget his last name. I could get it for you. Q. Are the collectors divided into teams at all? A. As far as I know, no. Q. Do you recognize the name Karen Hopkins? A. Yes. Q. Who's that? A. She performs duties, a paralegal. And I work with her sometimes. Q. What type of duties does she perform? A. She prepares papers for lawsuits where we are the attorneys who are suing. She forwards cases to attorneys where we have forwarding attorneys who bring suits other than New York, New Jersey. Q. Do you have retainer agreements with the creditors on whose behalf you bring suit? A. I can't answer that. I don't know. Q. You personally do not have any such
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Q. Is Marshalls related to CVS? A. I don't know the relationship. I don't know exactly what the relationship is. I can't comment on it. Q. Is there a relationship; do you know? A. I don't think there is one. Q. How about Wilson Suede, is there a relationship to CVS? A. I don't know exactly what the relationship is. Q. Do you know whether there is a relationship? A. I don't. Q. Okay. How about Melville (phonetically), is there a relationship between Melville and Wilson or Marshalls that you know of? A. I don't. Q. Is there a relationship between Melville and CVS? A. I don't know what the relationship is. I can't comment on that. I don't get into the relationships. You would have to ask Mr. Boyajian what the relationship is. Q. Do you know whether there is one or not? A. I don't, so I can't comment on it.

retainer agreement; is that correct? A. No, I do not. Q. Okay. Were you with JBC when it was at 33 Wood Avenue in Iselin? A. Wood Avenue, South Iselin, New Jersey, yes. Q. When did it move to Bloomfield? A. I guess about two years ago. I think it'll be two years in December, December or January. Q. Do you recognize the name Jack Cilingaryan (phonetically)? A. Yes. Q. Who's he? A. I replaced Jack Cilingaryan. He left the firm when I came on board. He was a New Jersey attorney. Q. And is he still a New Jersey attorney? A. As far as I know, yes. Q. Do you recognize the name Vito Capio (phonetically)? A. No. Q. How about Anthony Esposito? A. No. Q. Out Source Recovery Management?
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A. I recognize the name, but I can't -- I don't know what the function is. Q. Does JBC have any divisions that are differently named, for instance, have a trade name? A. JBC and Associates, P.C.? Q. Right. A. No, not that I know. Q. Do you recognize the name G&L Financial? A. No. I've never heard that since I've been at JBC. Q. Have you heard of Goldman and Levine? A. Who? Q. Goldman and Levine? A. No. Q. Have you heard of Goldman and Company? A. Who? Q. Goldman and Company? A. I've heard the name, but I can't place where I've heard it. Q. Does Barry Sussman have any relationship to JBC? A. No. Q. Has he ever? A. Not since I've been there.
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from Murphy, Pearson, Bradley and Foanay; do you recognize that name? A. Yes. Q. Who are they? im A. That's a law f r in California. Q. Does JBC work with that law f r ? im A. Do we work with them? Q. Yes. A. Yes. They did some work for us in California. Q. They represented JBC in California? A. Yes. Q. And above that there is a fax indicator for CMG; do you recognize that? A. I think it's being covered up by the little sticker. Maybe CMG. No, I don't know what that means. Q. Does Creative Management Group mean anything to you? A. No. Q. Would you recognize the name of any collectors? A. Would I recognize the names of any collectors? Q. Right. Or can you name some of them why
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Q. Do you know who Barry Sussman is? A. I read a newspaper report concerning

Mr. Sussman. He's in the collection business. Q. Right. How about Brian Sussman? A. No, never heard of that name. (Plaintiffs Exhibit A entered for identification: A one-page waiver of service of summons.) Q. Mr. Brandon, you just said you never heard of G&L Financial or Goldman and Levine. And I'm showing you what's marked as Plaintiffs Exhibit A, which is United States of America versus G&L Financial Services consent decree. Have you seen that before? A. No. Q. Would you look at the second to the last page. Is that a signature of Jack Boyajian? A. Yes. Q. Would you look at Plaintiffs Exhibit A. A. This page? Q. Yes. That's entitled waiver of service of summons. Does that contain the signature of Jack Boyajian? A. Yes. It appears to be his signature. Q. Up at the top there is a fax indicator

don't we put it that way? A. No. I don't spend any time with the collectors. I really don't know their names. Q. When a call is being transferred to you does someone say this is Miss Scott; attorney so and so is on the line or? A. Usually the collectors will write down the name of the attorney, the name of the debtor, and the file name and give it to me. Q. They physically give it to you? A. Yes. Q. What do you do once you have those three pieces of information? A. Return the phone call and find out why the call was made. Q. Do you have access to the client's records, I mean the debtor's records when you return the phone call? A. Yes. On a computer screen. Q. When the collector gives the first bit of information to you about the attorney, is that done by computer screen or by a piece of paper? A. Piece of paper. Q. Then in your office you have a computer, and you look up the file number for the debtor?
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A. That's correct. Q. Then you make the phone call? A. Yes. Q. And are you able to read the consumer's records on your computer screen? A. Yes. The information we have on the file. I bring the file up. Q. And are you able to enter information into that computer record? A. Yes. Q. What type of information could you enter? A. I would, if the phone call was important, I would enter what the phone call was about. Q. Would you enter the date and time or is that all? A. The computer does that automatically. Q. Would you enter your name or initials? A. No. The computer does that. Q. So the computer knows what terminal is entering the information automatically; is that correct? A. I believe so, yes. Q. Do you personally ever decide to send letters to debtors? A. Well, are we talking about collection
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letter? (Discussion off the record.) A. You just get into Micro Soft Word and type in a letter, or I have Karen Hopkins print it for me. Q. So it goes directly out of your own office? A. Or I give it to Karen, and she prints it. I sign it, and she sends it. Q. Now, with regard to the form collection letters, how do those go out? A. I'm not too familiar with the process, but the information comes in from the clients. And Jack Boyajian would review it. And he would determine if we have sufficient information and if the account is -- what letter should be sent to the debtor. He makes that determination firsthand. And the letter is sent out if we have enough information and if we verified the information as to where the debtor lives, how much is the amount, we have sufficient back-up information. And he would make that determination usually. Q. So he would sit at the computer screen and push the buttons to have a letter generated?
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letters? Q. Yes. A. Usually Jack Boyajian makes that decision. He reviews the accounts. Q. How many accounts would you have in your office at any given time? A. I have no idea. I couldn't even speculate on that. Q. If you have a hundred collectors how many accounts on average would they be working; do you know? A. I have no knowledge of the number of accounts or number of accounts that a collector would have. Q. If you entered this information on the screen and saw that a letter should go out to somebody, perhaps to the attorney, do you have that authority to create such a letter? A. If I'm corresponding with an attorney, yes. I usually deal with the attorneys. Q. So you don't have to go to Mr. Boyajian for review, can I send this letter out to attorney so and so? A. It would be very unusual. Q. What is the process to print out a

A. Yes. Initially he reviews it, yes. Q. But he doesn't send out every letter? A. I don't know. I've never done it with him. Q. Does a collector have authority to send out a letter? A. To my knowledge, no. Q. Are letters sent out on an automatic time basis? A. I'm not familiar with the process of how it's actually done. Q. You yourself don't review any of the letters that are sent to debtors; is that correct? A. That's correct. Mr. Boyajian reviews them. Q. Your letters are printed in Michigan; how does that process take place? A. I don't know. I would assume that the information is given to the printer by computer tape or disk. Q. Does JBC have form letters with fill-in-the-blank variables? A. I can't comment on that. I don't know. Q. Is it something Mr. Boyajian would know? A. I assume, yes.
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Q. Is there anybody else that would know? A. Anybody else who would know? Q. Yes. A. I don't know. Q. When you're observing the collectors I presume you can see them as you come in and out of the office; are they mostly on the telephone? A. Oh, yes. (Plaintiffs Exhibit B entered for identification: A one-page sample letter.) Q. That was produced by you in discovery as a sample of the first letter that goes out from JBC; is that correct? A. Yes. It has the validation clause at the bottom. Q. And that has your facimile signature on it; is that correct? A. That's correct. Q. That is not your real signature? A. That's correct. Q. Up at the top above the area that's blocked out there is a serial number. Looks like 00 1CT? A. Yes. Q. Does that indicate it was a letter
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or that's a twenty dollar fee that we may be entitled to. Q. Do you know whether your office adds the twenty dollars or whether it's already added when you get the account? A. Oh, I believe we add it. Q. Your office adds the twenty dollars? A. I believe so. Q. The second sentence says if you do not make payment you may be sued to recover payment. It looks like the total amount here is a hundred thirty-five dollars and sixty-three cents. Has Mr. Boyajian made the decision to sue when this letter goes to the consumer? A. Has he made -- I'm sorry. Your question is has he made the decision at the time? I don't know. I can't comment on what his decision is. Q. Well, your signature is on the letter. And you have made a statement of fact that if you do not make payment you may be sued to recover payment. Do you intend to sue when that letter goes out? A. Which sentence are you alluding to? Q. The second sentence, if you do not make payment, second sentence in the middle paragraph?
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drafted to go to a Connecticut resident? A. I can't tell you. I don't know to my knowledge. I assume CT means Connecticut. Q. Did you draft this letter? A. I may have drafted it in conjunction with Mr. Boyajian. Q. Did you research the contents of the letter? A. You'll have to explain that question. Q. There is a reference in the second paragraph to a Connecticut general statute? A. Right. I don't know if I did it or Mr. Boyajian did it, but I assume that one of us did it because it's factual. Q. You don't remember doing it yourself? A. No. Q. The middle paragraph says you're liable for the full amount of each check plus a service charge of twenty dollars per check. Who imposes the twenty dollars? A. I don't understand the question. Q. Does your office add the twenty dollars, or does the creditor I guess who's blocked out add the twenty dollars? A. I don't know whether it's done by statute

A. (No audible response.) Q. This is a very long pause. Is there something wrong? A. No. It's up to Mr. Boyajian whether he wants to sue or not. Q. Okay. So when this letter goes out under your letterhead you don't have any intent to sue; is that correct? That's a yes or no. A. Do I have the intent to sue? The answer would be no. Q. Let's look at the third sentence. If a judgment is rendered against you in court it may not only include the original face amount but additional damages. It goes on to mention additional damages. What is the basis for your statement that additional damages could be entered? A. I would have to see the statute, 52565A. Q. When you send that letter out are you aware whether the creditor has sent out a written demand for payment to the consumer? A. I have no knowledge of whether the creditor sent out a demand for payment or not. Q. Do you know whether the creditor has a posting at his place of employment about bounced
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checks? A. Oh, the creditors have a posting at the point of sale usually. I know, for instance, Toys R Us has a sign stating that returned checks are subject to a fee. Q. Have you personally seen such a sign? A. Yes. Q. And how about Wilson Leather, Wilson Suede and Leather? A. I can't say that I've seen one for Wilson Suede and Leather, but I have seen one for Toys R Us. I happened to have checked it, and I know the policy of the company. Q. And how about Marshalls, do they have a sign? A. I've never looked in Marshalls, so I don't know. Q. The third paragraph of your letter asks that the remission be made either to you or the client. Do you have some arrangement with the clients whereby JBC will get credit if the payment is made directly to them? A. I assume, yes, but I've never gone into that. That would be -- somebody else would handle that. That would be bookkeeping of some sort.
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to me. It comes to somebody else. And I m not ' sure who it is. I only receive the letter where it's on an attorney's letterhead. (Plaintiffs Exhibit C entered for identification: A one-page sample letter.) Q. If you'll turn to Plaintiffs Exhibit C. Again, that has your facimile signature on that letter? A. Yes. Q. And this was given to me as a sample or the second letter that's sent anyway. Do you recognize that? A. Yes. Q. There is a portion at the bottom that says detach lower portion. And over in the right there is a long string of numbers and letters. A. I don't know what that means. Q. NSDJBCAO 1002CT, would that indicate this is a letter drafted for Connecticut? A. I don't know what those letters or numbers mean, but I recognize CT as Connecticut. Q. The middle paragraph again refers to Connecticut General Statute section 52565A. And it again refers to the statutory penalties to be determined by the court. Does that indicate the
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Q. In the third paragraph also it says contact Lori Brown. Who's Lori Brown? A. There is no Lori Brown, per se. It's somebody who uses the name Lori Brown. Q. Who's that? A. I don't know. Q. Are your collectors grouped so that somebody who asks for Lori Brown goes to a certain group of collectors? A. I don't know. Q. Normally, if someone wanted to dispute the debt they would write back to you; isn't that correct? A. If it's an attorney, it comes to me. If it's not an attorney, if it's somebody who wants to dispute the debt it would -- I'm not sure how the process works. Q. You don't remember yourself getting any dispute letters individually from a consumer? A. Very rarely. Q. Would the mail room or whoever opens the mail intercept the dispute letter before you saw it? A. If it's a debtor who's disputing or requesting verification, it usually doesn't come

letter was drafted for Connecticut? A. Yes. Q. And what is the basis for your advising the debtor that he or she may be subject to statutory penalties? A. The terms of the statute. Q. And what do the terms of the stature provide with regard to statutory penalties? A. Offhand I don't know the Connecticut General Statute section. Q. You're not admitted as an attorney in Connecticut? A. I am not. (Plaintiffs Exhibit D entered for identification: A three-page defendant's response to first set of interrogatories; Plaintiffs Exhibit E entered for identification: A three-page fact sheet.) Q. Turning to Plaintiffs Exhibit D, and I'm going to ask you to look at D and E together because they both relate to the Marshalls' account. A. Yes. Q. According to Exhibit D, there were I believe seven checks issued to Marshalls in
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1 January of 1996; is that correct? A. Yes. Q. And I won't ask you to add them up. 1'11 represent they amount to two thousand one hundred and ninety-five dollars and fifty-four cents. A. Face amount? Q. Right. What figure would be appropriate to send in a letter to Miss Goins that you would demand in your letter when you're collecting seven checks totalling two thousand one hundred ninety-five dollars? A. Which letter? Q. Any letter. A. The first letter, face amount plus twenty dollar check fee. Q. For each check? A. Yes. Q. Is there some difference in the second letter as to the amount that would be demanded? A. I don't know what the demand amount would be in the second letter. Q. Would it change? A. I don't know. Q. Is there a basis for increasing the demand in the second letter?
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62402? Way at the top. I see 1102 CS31. Right. And is that MB on the right-hand Is that you? It's my initial. Q. So evidently you made some entry from your computer? A. CS3 l ? It's my initial. I don't know why that appeared there. I can't tell you. There is no information as to why it's there. Q. Do you know what CS3 1 means? A. No. Q. Is there any indication of Ms. Goins' driver's license on this fact sheet? A. No. I don't see any driver's license on this fact sheet. Q. Is there any indication on this fact sheet of the check number? A. No. Q. Is there any indication on the fact sheet of the check's date? A. There is no appearance of the date of the check on the fact sheet. Q. And how about the ABA number, which I
Page 35

A. Q. A. Q. side? A.

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A. I would have to see the statute. Q. Who inserts the amount demanded in the letters? A. I assume it's computed by Jack Boyajian. Q. Would you assume that the computer calculates the amount, or are you assuming that someone is physically putting in an amount? A. I assume it's programmed in. Q. Let's take a look at Plaintiffs Exhibit E, which is the fact sheet that goes with the Marshalls' checks. And I only reproduced the fact sheet for the first check because they're all pretty much alike. Do you see an entry by you anywhere in those three pages? A. No. Q. If you look at the top of the second page, down about six lines, there is an MB? A. Oh, wait a minute. Let me see. Where are we, second page? Q. Yes. A. Where do you see an MB? Q. 62402 at 1 102 about five or six lines down from the top on the right-hand side on page two. &* K
'

guess is the American Banking number of the check? A. I don't know. No, it doesn't appear on the fact sheet. Q. Where would you get that information? A. The information appears on a computer screen. It appears that all the information on the computer screen does not appear on the fact sheet. This may be because of the way the fact sheet was programmed. Q. What other information appears on the computer? A. That doesn't appear on a fact sheet? Q. Right. A. I don't know. I've never given it any thought because I don't work with the fact sheet. I work with the computer. It's very rare I see a fact sheet. Q. You were very particular about the check numbers, the dates, the ABA number and so forth? A. That was probably taken -- I can't take the information off. That was taken off by somebody else in the organization. I assume it was taken off the computer screen. Nobody checked the fact sheet. Q. Who took this information off!
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A. I assume it would be Karen Hopkins or Dawn Pollard. Q. If there is information on a computer screen, can't you just hit a button and print it out? A. That's what I thought. Q. Well, we are missing then evidently some of the parts of the computer screen, and we would like to have those. A. This may be just the way the fact sheet is, the computer software, the way it's made up. Q. Right. You may have printed out just the fact sheet and not the whole record? A. I don't know if we have the ability to print out the whole screen. As far as I know the only thing we can print out is the fact sheet. Q. Usually you can do a screen dump. So I would ask you to go to your IT person and see if your IT person can do a screen dump so we can see all this information for ourselves. (Discussion off the record.) Q. At the top of the first page of the fact sheet on the left there is a Status 42, which looks like it says closed per JBC? A. Yes.
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Q. When was this fact sheet printed? I guess I could answer that myself, March 6,2003 it says on the third page? A. Yes. The date it was printed was March 6th. Q. So the fact sheet is current as of March 6, 2003; is that correct? A. That was when it was printed off on that date. Q. The dates of the checks are all in 1996. And this first sheet begins 5/17/99. Is that when you transferred from the old software to the new software? A. We transferred from the old to the new within the first six months of 1999. I don't know when it was entered into GWA, the old system. But I probably wasn't there. Mr. Cilingaryan was there. Q. In your response to interrogatories you said you transmitted letter number 114 on 6/2/99. Is that referenced in this fact sheet somewhere? A. We're correcting that. I don't know what 114 means. I went back and checked to see when we had sent out letters. SN signifies a letter was sent.
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Q. Who's JBC? A. A law firm of, I assume it's JBC, P.C., or ifthis is short for JBC, P.C. Q. The fourth line says activity code NU, not used; what does that mean? A. No idea. Q. How about below that previous GWAID? A. GWA was a computer software that we used prior to the present software, CRS. When I came into the firm, within the first six months there was a switch over to the new CRS system software. GWA is a reference to the old system. Q. Does that indicate that you might be able to pull something out of the old system? A. I don't know. I don't know what the status of that system is. I just recognize the initials GWA. Q. Your sample form letter to Connecticut, which is Exhibit B, refers to a service charge of twenty dollars; whereas this fact sheet refers to a fee of twenty-five dollars. Can you tell me what the difference is? A. I don't know why there is a discrepancy. It may have been -- I really can't say. I have no knowledge of why there is that discrepancy.

Q. So on the first page of Exhibit E, the fact sheet, you can see the third line down it says SN/3? A. That's when a letter was sent. Q. Does that mean the third letter in the series; is that what SN/3 means? A. I don't know which letter was sent. Q. If you look at the last page you'll see SN/2? A. Yes. That would be -- I can't tell which letter was sent. Q. But SNl2 was sent on January 30,2003; is that correct? A. SN/3? Q. SN/2? A. What page? Q. The third page. This is the last page. A. On the third page? Q. Right. A. SN/2 was sent on 1/29/03. Q. Can you just start on the first page on the right-hand column and interpret for me what it says below transactions. A. Oh, I don't know what those symbols are. I mean, the only symbol I'm familiar with is SNI

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1 and the number, one, two or three. Q. Who would know what the symbols mean? 2 A. That would be Dawn Pollard. 3 Q. Does she have a reference manual of some 4 5 sort that I could have that would enable me to 6 read these for myself! A. I don't know. 7 Q. Would you ask her? 8 9 A. Yes. Q. So on the extreme right-hand column that 10 11 says ID? A. That's the initials of the person who 12 13 entered the numbers and letters. DMP stands for 14 Dawn Pollard. Q. Do you have any idea what Dawn Pollard 15 16 did on January 16,2002? 17 A. No. Q. It looks like the time is 2241, which 18 19 would be pretty late at night. Does she work that 20 late? A. What page are you on? I'm sorry. 21 Q. I'm still on page one. 22 A. Where is the entry? 23 Q. January 16,2002. 24 A. Oh, I see you. No, I don't know what 25
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references to 235; do you know what those are? A. I can't see where you're referring. Q. On the right-hand side under ID? A. On page three? Q. Yes. A. I don't see them. Q. Way over on the right-hand side by the margin under ID. A. Oh, I'm sorry. I don't know what they stand for. Q. So if you brought this account up on your computer screen what would you know about it? A. You mean according to the fact sheet or the computer screen itself? Q. Well, I'm assuming you're seeing more than this fact sheet? A. That's correct. Q. Is there anything you can tell from looking at those three pages about the account? A. On 11/26/01 the debtor refused to pay. Q. Does that indicate a telephone call or a dispute letter? A. I believe that's a telephone call. Q. Were you looking at the other exhibit? A. I was looking at the other fact sheet.
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that stands for. Q. Below that there is an ROO; do you know what those are? A. Yes. That whole line I believe is initials. Q. So the second page where there is a whole bunch of DMP's, that's all something Dawn did? A. As faras1 know,yes. Q. It looks like a whole bunch of creditors here, Bob's, CVS Stores. Why is this account which was a Marshalls' account marked UNRTRN for all these different creditors? A. I don't know. Q. Is there any indication on this account of when it reached a closed status? A. Let me see, there is no indication on here that I can see. Q. Is there any indication on this fact sheet of attorney representation? A. No. I don't see any. Q. On the last page there is several references to the number 235; do you recognize that? A. I'm sorry? Q. On the last page there is a bunch of

Q. We'll get to that. Is there any way in your system that an account is reopened after it is closed? A. I don't have any knowledge of how that would be done. Q. Do you know whether it can be done? A. I don't know. Q. Is there someone assigned to going through closed files and opening them to see if they can find the debtor or anything like that? A. I have no knowledge of that. (Plaintiffs Exhibit F entered for identification: A one-page document; Plaintiffs Exhibit G entered for identification: A three-page fact sheet.) Q. If you look at Exhibit F and G together, and those two exhibits are regarding the Wilson Suede and Leather Company? A. Yes. Q. Once again there is nothing on those sheets that show the check number or the date of the check or the driver's license number; is that correct? A. That's correct. Q. There is a social security number on
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Exhibit E and on Exhibit G. And they appear to be different. Can you explain why that might be? A. I don't know if that's the social 3 security number of the debtor. It may be a field that's used for something else. I can't comment on that. I don't know. Q. But there are two different figures in each of those accounts; they're not the same numbers? A. To my knowledge I don't believe these are social security numbers. I think they're just using the field for something, but I don't know what. I can't comment on that. Q. All right. Plaintiffs Exhibit G says Status 49, closed per attorney. What does that mean to you? A. Somebody closed it. It may have been me. And the status is 49. Q. What's the difference between Status 49 on G and Status 42 on E? A. Status 42 is closed by JBC, and Status 49 is closed per attorney. Status 49 may have been that I closed it. Q. Your initials are again on the top of the second page at the very right-hand side under the
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Q. And that's not the case in Connecticut? A. I don't know without reading the statute. Q. Well, your letter says it's twenty dollars? A. Then it's twenty dollars. Q. Has your -A. -- By the way, New York is twenty dollars by statute. Q. New York is? A. Yes. Q. Have your letters, I'm going back to your sample letters, Exhibit B and C, have your letters ever referred to criminal consequences of a bounced check? A. Which letter are you -Q. -- I'm looking at Exhibits B and C, which do not refer to criminal consequences. A. Do we ever refer? Q. In the past, before these letters were adopted, have your letters ever referred to criminal consequences? A. To my knowledge, no. Letters should not refer to criminal consequences. Q. Why is that? A. It may be a violation of the FDCPA.
Page 49

same date as in Exhibit E. A. 6/24/02? Q. Right. A. That would be me closing the file. It could be me closing the file. I'm not sure why. Q. Okay. And Exhibit G shows collection unit 345 Lori Brown. What does that mean? A. Where is this? Q. Right on the front under status, top left. A. Oh, I'm not sure why that collection unit 345 Lori Brown appears. Q. Is it JBC's normal practice to assess a twenty-five dollar bounced check fee in states other than Connecticut? A. The normal practice is to assess the fee according to the statute of the state. Most states have a bounced check fee amount, a specific statutory amount. Some states do not. Q. So is the twenty-five dollars something that's put in that area up on the upper right check charge fee just automatic? A. That's usually the statutory amount that's permitted to by statute. It may vary from twenty to thirty-five dollars.

Q. Look at Plaintiffs Exhibit C, the second sentence says our clients may now assume you delivered the checks with intent to defraud and may proceed with allowable remedies. What is the basis for the client assuming that the checks were delivered with intent to defraud? A. Would you repeat the question, please. (Question read back.) A. The debtor has not responded to the second, the first letter. And the client may assume that there was an intent to defraud the client and may proceed with civil remedies. Q. That's what it says, but why may the client proceed with civil remedies? A. Because the debtor has not responded to the request for payment. Q. Is that all? A. That's all. Q. Do you find that most checks are written with intent to defraud? A. It says the client may now assume. Q. The question was: Is it your experience that most checks are written with intent to defraud? A. My experience has been that the majority
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of people write checks without sufficient funds in their accounts, and that they knew it. Q. So that's the premise of the letters that go out from JBC, that all these checks were knowingly written when there were insufficient funds? A. There may be a reason for the insufficient funds, check has not cleared or the party has paid the debtor prior. Most people who are honest about it will say something about it. Q. Will say something about what? A. Will respond to the letter. My experience has been the majority of people who have a legitimate reason for the check bouncing will respond when they receive the letter saying that there is a bounced check. Q. And what percentage of people out of the whole percentage of letters that go out respond to the letters saying I have an excuse? A. The majority of people that have an excuse will respond. Q. That isn't the question. A. Yes. Q. The question is: What percentage of people respond at all in the whole universe of the
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Connecticut? A. To my knowledge, no. Q. What precautions were taken to avoid collecting in Connecticut? A. I don't know. You would have to ask the person in charge of that. MS. FAULKNER: I did ask for all the correspondence with the Connecticut Banking Department in discovery, and I didn't get anything. MR. FIANO: Yes. I believe at the time Mr. Brandon didn't have anything in his possession. But I'll get you generally what JBC has to the extent that there is any. (Plaintiffs Exhibit H entered for identification: A one-page assignment; Plaintiffs Exhibit I entered for identification: A twelve-page consent decree; Plaintiffs Exhibit J entered for identification: A one-page fax to Elaine Szymanski from Marv Brandon.) Q. Mr. Brandon, I'm asking you to look at Plaintiffs J. Do you recognize that? A. Yes. It's my signature. Q. And what is that document? A. It's a fax to Elaine Szymanski,
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letters you sent out? Is it five percent, ten percent? A. I have no idea. I'm not privy to that information. In my end of the business that doesn't come up. Q. So that's just your opinion rather than your experience? A. My opinion based on experience. Q. Now, you are not licensed as a consumer collection agency in Connecticut; is that correct? A. That's correct. Q. And JBC is not licensed as a consumer collection agency in Connecticut; is that correct? A. That's correct. Q. Mr. Boyajian is not licensed, either; is that correct? A. That's correct. Q. And have you had correspondence with the Connecticut Banking Department about getting licensed? A. Yes. We made a filing. And Mr. Boyajian is handling it. And they returned the filing for some additional information. And that information is being provided to them. Q. Meanwhile, are you still collecting in

Connecticut Department of Banking. Q. What did you tell the Department of Banking about collection in Connecticut? A. That we discontinued communication with Connecticut residents. Q. Did you personally know that for a fact? A. I must have been informed of that fact by somebody. I did not personally know that. Q. At the top of the letter there is a reference to Roa Hutton; what is that? A. That's a firm that shares some space with JBC and Associates, P.C. Q. Is that also on the sixth floor at 2 Broad Street? A. Yes. Q. And what type of firm is that? A. It's a real estate firm. Q. Do you have any interest in that? A. Me? Q. Yes. A. No. Q. Do you work for that firm at all? A. No. Q. Do any employees of JBC work for that firm?
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A. The only employee who would work for that

fr that I know of is Jack Boyajian, but I'm not im


sure what the relationship is. And anything I say about it would be speculation. Q. Is there a reason that the Roa Hutton fax was used instead of the JBC fax for that particular piece of paper? A. Yes. Their office is next to mine, and I probably just walked in and used their fax because the other fax was tied up. That's the only reason. I use that frequently. It's right next door. Q. With regard to Ms. 0 , you have the do original checks? A. I requested the original checks from the clients. Were you provided with checks? Q. No. THE WITNESS: Do you have any checks? Q. Excuse me. You're not supposed to talk to Mr. Fiano. A. I requested the checks from the clients. They were unable to provide checks. As far as I know there may have been two or three checks that they did provide, copies of them. If we had them
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from? A. I think we asked Melville for copies of the checks, which is Marshalls and CVS if my memory serves me right. Q. When did you ask for the checks? A. I asked for the checks I think as soon as suit was, your first suit was commenced. Q. Do you have a copy of the letter? A. I think I did it by phone or fax, but I'll look in the file and see. Q. Would that be on part of the computer record that's not been provided to me so far? A. No. If it was entered, if I entered it into the computer it would have showed up on the fact sheet. Q. If you would look at Exhibit H, CVS assignment? A. Yes. Q. Do you recognize that document? A. Yes. Q. And what is that? A. It's an assignment of CVS' claims to JBC and Associates, Inc. Q. Is that your signature on the bottom left-hand side?
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in the file, we would be glad to provide them to you. The majority of the checks are unavailable. They were destroyed, lost, or we could not get them from the clients. Q. Could you bring a civil proceeding against Ms. w i t h o u t the checks? A. We would rely on the books and records of the company of the clients. Q. What books and records? A. The factual material. Q. What factual material? A. Computer, fact sheet. Q. You would bring this fact sheet into court that doesn't have the dates of the checks or the numbers of the checks; is that what you're saying? A. I don't know if the court would accept it, but we would have the information. We would provide all the information that we would have. The client may have a way of printing it out, their books and records. Q. And who is the client in this case? A. It would be Wilson Suede and/or Marshalls. !5 Q. Which client did you ask for the checks I
_ i ,

A. Yes. Q. And is that Mr. Boyajian's on the bottom right-hand side? A. Yes. Q. This seems to be dated October of 1998, which is before you started at JBC according to your recollection; is that correct? A. That's correct. I stated earlier. Q. Did you have some relationship with JBC before you were hired? A. No. Q. How do you account for the fact that the letter is dated earlier? A. I can't account for it. It may have been back dated for some reason or maybe an error in the year. Q. Well, there is some kind of faint fax marks up on the top. And they all agree it's 1998. It appears to be; is that correct? A. Yes. It appears that was faxed to JBC on October of 1998. Q. Do you recall somebody asking you to witness this after the fact? A. No. I don't recall when this was done. Q. Do you make collection guarantees to your
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clients? A. Me personally? Q. No, JBC? A. I have no knowledge of the relationship between CVS and JBC, what terms they have for collections. Q. That wasn't limited to CVS or Melville. I'm talking about any client? A. No. I have no relationship with clients concerning agreements for checks. Q. Have you ever individual visited JBC's web site? A. No. Q. Who's in charge of the web site? A. Who's in charge of the web site? Q. Right. A. I've never been there. I've never entered it. I don't know who's in charge of it. Q. What kind of software do you use at JBC? A. What kind of software do I use? Q. JBC. What does JBC use? A. You mean for collection? Q. Yes. Is there a name for it? A. CRS. That's all I know. Q. Do you know what company is the vendor?
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letters would not know you were at JBC? A. No. The letterhead that we use now shows me as an attorney in New Jersey. The letterhead on the left-hand side appears the name of Jack Boyajian, my name, and what state we're admitted to and the names of the of counsel. Q. If you look at the fact sheets, is there any indication on there that you ever got Ms. Goins' credit report? A. No. I've never seen her credit report. Q. Did JBC get her credit report? A. To my knowledge, no. Q. What would be the occasion for getting her credit report? A. I don't know. Q. Would you do that before you decide whether to sue, for instance? A. Her credit report may have been obtained pursuant to suit if the information that we needed to sue was on her credit report. I don't know the parameters for pulling a credit report. Q. Do you know what the statute of limitations is for dishonored checks in Connecticut? A. Offhand, no.
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A. No. Q. Do you recognize the name Karen Nations (phonetically)? A. I recognize her as an attorney. I've had no relationship with her. Q. Is she in-house counsel for JBC? A. She may be associated with JBC as a, what's the term, not an associate, of-counsel relationship. Q. And how about Elton Watkins (phonetically)? A. Of counsel. Q. How long has Elton Watkins been of counsel? A. I don't know. Q. Does your facimile signature still appear on the form letters JBC sends out? A. No. Q. When did that stop? A. As of January 1,2003. Q. Why did that stop? A. I was going to leave the firm, retire. But I was asked to stay on. But my name was removed from the letters. Q. So at that point anybody who got the

Q. Do you know what the statute of limitations is in New Jersey? A. For dishonored checks? Q. Right. A. It could be six years. Q. Are you familiar with the Marshalls' stores? A. As clothing stores, yes. Q. I was going to ask you what they were. A. Clothing stores. Q. Okay. How about Wilson Leather? A. They sell leather goods, like jackets, wallets, anything made of leather. Q. So both of those -A. -- Wilson's is usually in malls. And Marshalls is usually free-standing stores or part of strip malls. Q. You gave me only two sample letters. Are those the only letters that are used in Connecticut as far as you know? A. As far as I know, yes. Q. Are those similar to those that are used in other states? A. To the best of my knowledge. There are similarities.
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A. To the best of my knowledge, yes. Q. Do you have any idea what the standing of JBC is in the collection field? Is it the largest, the smallest? What's the type of standing that JBC has? A. JBC and Associates, P.C.? Q. Right. A. It's just a guess, but I would say it's on the small side. Small, small side. Q. Does JBC have competitors in the bounced check collection? A. There are other firms that do it. I don't know their names. Q. Is JBC one of the more prominent ones as far as you know? A. No. Q. Does JBC keep statistics on its success rate or recovery rate? A. Not to my knowledge. Q. Do you see any reports that are circulated around JBC as far as recovery rates or? A. No. I've never seen reports concerning recovery rates.
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Q. Who would handle its trademark business? A. The only person who I know would know would be Jack Boyajian. (Plaintiffs Exhibit K entered for identification: A one-page document entitled, "Strategies.") Q. I'm showing you what's been marked as Plaintiffs K. And it purports to be the web site of JBC and Associates. Would you agree that that's what it appears to be? A. Yes. Q. It has a picture of several people sitting around the table; do you recognize any of those people? A. The picture is not clear, and I don't recognize anyone sitting around that table. MS. FAULKNER: Do you have a magnifying glass? MR. FIANO: I don't think so. (Discussion off the record.) A. I don't recognize any of those people. Q. No Dawn in there or Karen or Jack? A. No. Q. Or Steve? A. No. This picture may have been taken in
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Q. How about evaluations of employees, have you seen those? A. No. I've never seen an evaluation of an employee. Q. Are you familiar with the Check Recovery Program? A. No. Q. Are you familiar with the phrase computer-aided auto strategies? A. No. Q. Are there any states other than Connecticut that JBC does not collect in? A. Does not collect in? Q. Right. A. Not to my knowledge, no. Q. So JBC collects in all fifty states other than Connecticut at this point? A. I believe that's correct, yes. Q. Does JBC report to credit bureaus? A. To my knowledge, no. Q. Does JBC have a trademarked check recovery program? A. A trademarked check recovery program? Q. Yes. A. Not to my knowledge.

the Iselin office. Q. In the older office you mean? A. Yes. Of course I don't recognize the table. Q. Don't even recognize the office; is that what you're saying? A. Right. Q. JBC is collecting in Massachusetts as far as you know? A. As far as I know, yes. Q. Is JBC licensed in Massachusetts? A. I don't know if we're licensed in Massachusetts. I don't know if we have to be licensed in Massachusetts as a law firm. Q. Who would know that? A. The only person at the firm that I could think of who would know that would be Jack Boyajian. Q. I don't think I have any further questions, but if you just let me look over my stuff for a few minutes. MR. FIANO: No problem. (Discussion off the record.) Q. In one of the discovery requests that you gave me, and I did not bring it, I'm sorry, there
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Page 68 1 EXHIBIT INDEX 2 PLAINTIFF'S EXHIBITS FOR IDENTIFICATION: DESCRIPTION A one-page waiver of service 9 1 of summons A one-page sample letter 26 A one-page sample letter 32 A three-page defendant's 33 response to first set of interrogatories A three-page fact sheet 33 A one-page document 45 A three-page fact sheet 45 A one-page assignment 52 A twelve-page consent decree 52 A one-page fax to Elaine 52 Szymanski from Marv Brandon A one-page document entitled, 64 "Strategies"

is a response to a collection manual that tells collectors how to deal with various objections of consumers and so forth. Did you have a hand in drafting that? A. No. Q. Do you know who did? A. No. Q. Who is the FDC compliance officer at JBC? A. FDCPA compliance officer? Q. Yes. A. I don't know if there is a specific compliance officer. Q. Where would a collector go to ask a question about compliance with the FDCPA? A. He would go to his supervisor or the manager of the floor. Steve I think his name is, Steve Bellow (phonetically). Q. Is there anybody who's full-time job is making sure that JBC complies with state licensing laws? A. There is no specific person. It could be Jack Boyajian. It could be myself. Q. Is there any specific person whose primary job duty is to make sure JBC complies with the Fair Debt Collections Act?
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A. Q. A. Q.

Any specific person? Right. No. Okay. I have no further questions. MR. FIANO: I have no questions. (Deposition concluded at 3: 10 p.m.)

MARVIN BRANDON

SUBSCRIBED AND SWORN TO BEFORE ME, the undersigned authority, on this the day of ,2003.

NOTARY PUBLIC My Commission expires:

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3.2 Deposition of Collection Lawyer/Owner (PDF format)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT --------------------------------x [Consumer], Plaintiff, -versus: Case No. 3:02CV 1069 (MRK)

JBC & ASSOCIATES, ET AL, 8 Defendants. 9 --------------------------------x 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Deposition of JACK H. BOYAJIAN, taken pursuant to The Federal Rules of Civil Procedure, at the offices of Sanders, Gale & Russell, [Address], New Haven, Connecticut, before Patricia Saya, LSR No. 37, a Registered Professional Reporter and Notary Public in and for the State of Connecticut, on January 27, 2004, at 10:35 a.m.

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A P P E A R A N C E S: For the Plaintiff: JOANNE S. FAULKNER, ESQ. [Address] New Haven, Connecticut 06511-2422 For the Defendants: KLEBAN & SAMOR, P.C. [Address] Southport, Connecticut 06890 By: SABATO P. FIANO, ESQ.

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S T I P U L A T I O N S

IT IS HEREBY STIPULATED AND AGREED by and between counsel for the respective parties hereto that all technicalities as to proof of the official character before whom the deposition is to be taken are waived.

IT IS FURTHER STIPULATED AND AGREED by and between counsel for the respective parties hereto that the signing of the deposition by the deponent may be performed before any Notary Public.

IT IS FURTHER STIPULATED AND AGREED by and between counsel for the respective parties hereto that all objections, except as to form, are reserved to the time of trial.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NO. L M N WITNESS JACK H. BOYAJIAN

I N D E X DIRECT 5 CROSS --

PLAINTIFF'S EXHIBITS DESCRIPTION Fact Sheet, one page Press Releases Letter dated November 22, 2001 PAGE 5 53 76

(Exhibits were retained by counsel.)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 J A C K H .

(Plaintiff's Exhibit L: Identification - described in Index.)

Marked for

MR. FIANO: He will read and sign. B O Y A J I A N ,

of [Address], Bloomfield, New Jersey 07003, called as a witness, having been first duly sworn by Patricia Saya, a Notary Public in and for the State of Connecticut, was examined and testified as follows: DIRECT EXAMINATION BY MS. FAULKNER: Q. Mr. Boyajian, you are here on a deposition in

a case brought by [Consumer] against JBC & Associates. A. What is your position at JBC & Associates?

JBC & Associates, PC, I am the president of

that entity. Q. Do you have any other positions there,

director, officer, shareholder? A. Q. A. Q. A. Q. A. Q. I am an owner. Do you have co-owners? No. Was your father ever associated with JBC? Is that the end of your question? Yes. No. You need to clarify "JBC." What is my confusion?

All right.

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A.

Well, is it JBC & Associates, PC that you are

referring to? Q. Not necessarily, any JBC entity. I know you

were an Inc. before. A. Q. A. Q. A. The answer is no in either case. Is your father's name also Jack? No, it is not. Is your father's name John? My father is deceased. My father's name was

not Jack or John. Q. A. Was he ever associated with JBC or Goldman? Okay. Now you are asking me two different

questions. Q.

Can you please rephrase the question?

There was a Goldman & Levine, there was a Was

Goldman & Company, and there was a G&L Financial. your father associated with any of those? A.

I don't understand what relevance that has to What is the nature of your question and why

this case.

do you ask it? Q. A. Answer the question, please. I won't answer that question. There is no

relevance.

Unless there is a reason to link the two

entities together, then there is no answer that I need to give you. Q. There was a Jack Boyajian -- excuse me for

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mispronouncing your name -- associated with all those entities. A. I am trying to find out whether it was you. Well, I don't know which of those entities you

are speaking of, because it is a compound question that you asked me. So I cannot answer that question. Even

if I wanted to, I could not answer that question. Q. correct? MR. FIANO: I am going to object to the form of that question. I think his point is well taken. You were an officer of G&L Financial; is that

I am not sure -- to be honest, I have never heard of J&L Financial, so I am not sure what J&L Financial has to do with the case. MS. FAULKNER: It is G&L. MR. FIANO: Which I guess shows my point. I am not sure what G&L Financial has to do with this case. I know there is a claim against JBC & Associates I am not sure what the relevance

and other defendants. of that is.

MS. FAULKNER: Relevance is not a basis for objecting to discovery. A. Q. A. I will not answer that question. So you were associated with Goldman & Levine? I don't know what you mean by "associated,"

and I don't know what that has to do with this case.

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Q. A.

You were associated with G&L Financial? I don't know what you are referring to. Can

you explain exactly what you mean by "associated"? Q. A. Q. A. Q. A. Q. A. Q. A. When did you graduate from Rutgers? Rutgers what, ma'am? Law School? 1996. And did you take the New Jersey Bar? Yes, I did. And did you pass it? Yes, I did. And did you get admitted to New Jersey? No, I did not. I did not apply for

New Jersey -- I did apply, but I withdraw my application for admission to the bar. Q. A. Q. A. Q. A. Q. A. Q. A. Why was that? I chose not to be admitted in New Jersey. Are you admitted anyplace else? Yes. Where is that? California. That was what year? 1999. Do you practice law in California? Yes, I do.

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Q.

What type of law do you practice in

California? A. General law, I practice corporate law, and

plaintiff -- plaintiff matters relating to asset recovery, as well as entertainment law. Q. Do you do any work in California for J&B

Associates? A. Q. A. Q. J&B? Right. Do you mean JBC? Sorry. I am looking at the ampersand. JBC,

thank you. A. Yes. That is a California corporation, law And yes, I do work

firm, doing business in California. in that firm. Q.

Do you bring collection lawsuits in California

on behalf of clients of JBC? A. Again, I am wondering what the relevance of But the answer is yes.

that is in a Connecticut matter. Q. A.

What employment have you had since law school? I have been employed by JBC & Associates,

Inc., and JBC & Associates, PC. Q. school? A. I have a non-paying position in other Have you had any other employment since law

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unrelated entities. Q. What are those entities? MR. FIANO: I am going to object to the materialness of the question. I am honestly not sure

why we are going through all the entities that he is affiliated with. the claims. I understand I can't make an objection as to relevance, but I can certainly make an objection if it appears immaterial and not intended to lead to any admissible evidence. And I am truly confused in terms I am just not sure how that ties into

of how other entities that aren't defendants to the lawsuit -- there is no allegations as to any conduct as to these entities -- tie into the lawsuit at all. MS. FAULKNER: Would you restrict your objections to one or two words, please? MR. FIANO: to the form. Q. What other entities have you been employed by Okay. I am going to object

since graduating from law school? A. I hold a position as president of ROA Hutton,

LLC, and that is it. Q. Since you graduated from law school, would you

name all the entities with which you have been associated?

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A. Q. A. Q.

In what capacity? Any capacity; employed, officer, owner? Asked and answered. When did you graduate -- you implied -- excuse

You graduated from Rutgers undergraduate, did

A. Q. A.

No, I did not. Where was your undergraduate school? The Wharton School of Finance, University of

Pennsylvania, 1982. Q. A. What employment have you had since 1982? I have been a vice president of C&R Realty &

Management Company, president of Far Hills Community Management, Inc., President of the Hutton Group, Inc., president of Quemont Developers, Inc. Q. Levine? A. Goldman & Levine was a trade name for G&L Did you have any association with Goldman &

Financial Services that I was acting president for for approximately a year and a half between 1994 and 1995. Q. A. What about Goldman & Company? I have absolutely no association or no

knowledge of a company named Goldman & Company. Q. Do you know of Brian Sussman?

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A.

Brian Sussman was an individual who was

associated at one time with G&L Financial Services, to my recollection, and shortly after my involvement, was no longer involved. Q. A. Q. A. Q. A. How about Barry Sussman? What about Mr. Sussman? Do you know Barry Sussman? In what capacity? Any capacity? Mr. Barry Sussman was an employee of G&L

Financial Services during my interim stay there and went on to -- to my understanding, formed an independently run Goldman & Company as a distinct entity from anything else, other than G&L Financial Services, Inc. Q. How much time do you spend at the location of

JBC & Associates? A. Q. office? A. Q. office? A. Are you asking me how many employees did JBC & Because we don't have Are you withdrawing the prior question? How many employees do you have in your Boston Which location, ma'am? Please be precise.

How many employees do you have in your Boston

Associates have in Massachusetts? a Boston office.

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Q. A.

All right.

Answer that question.

We have of counsel there, Mr. Elliott Watkins,

and I believe he has several members working with him in that office. moment. Q. And do the members in the Massachusetts office I don't know the exact count at the

also work for JBC other than Mr. Watkins? A. They are not -- their payroll is paid by I don't know where, but we do --

another entity.

technically, they work for JBC & Associates in the matters that relate to JBC & Associates. Q. A. Do you have an agreement with Mr. Watkins? Again, I don't understand the relevance of

this question with respect to this case, and that is confidential. That agreement, if there is one, is

confidential, and I am not in a position to discuss it. Q. A. Why is it confidential? Because it is man-made law that we agreed to

have a confidential agreement between the two entities. Q. A. What two entities? JBC & Associates and Mr. Watkins. I believe

that is your question, was it not? Q. Mr. Watkins is of counsel to JBC & Associates;

is that correct? A. Asked and answered affirmatively, yes.

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Q.

And JBC & Associates has some kind of a

contract with Mr. Watkins as of counsel; is that correct? A. I don't know why you are laying foundation

down when I have already testified to what you just said. Q. A. I am trying to -I don't know why you are wasting time. Would

you like the Court Reporter to reread what my testimony was? Q. Mr. Boyajian, you have had your deposition I think you know how to behave at a

taken many times. deposition. A.

Is that a question? MR. FIANO: If I could just clarify, maybe

reading it back would be helpful.

I think he testified

that there is an agreement between JBC and Mr. Watkins to keep their relationship, the nature of their relationship, confidential, which they are free to do by contract, or they are free to have an agreement to keep their relationship confidential. MS. FAULKNER: They are not free to keep it confidential from court if it is appropriate. Q. So your testimony is that the Boston office,

the Massachusetts office -- which I think is in Boston?

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Is it not in Boston? A. I think the mailing address is in Boston. I

believe the offices are just on the outskirts of Boston. Q. You have a relationship of of counsel with What does he do for JBC?

Elliott Watkins. A.

Mr. Watkins acts of counsel to matters

relating to JBC clients. Q. A. Exactly what does he do for JBC clients? If you asked me specifically questions that I I don't know what you mean by He does what of

can respond to, I will. "what does he do." counsel does. Q.

He is of counsel.

What does he do?

Does he bring lawsuits?

Does he communicate? What does he do? A. Q. A.

Does he sell JBC & Associates?

Does he act as a -What do you mean?

Sell JBC & Associates?

Is he a sales associate for your business? I don't think typical services of counsel

includes selling the services, but in that particular case, no, he does not. Q. clients? A. Q. A. Yes, I believe he does. Does he get compensated for those lawsuits? Yes, he does. Does he bring lawsuits on behalf of JBC

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Q. A.

Is that pursuant to this agreement with JBC? Again, the terms of the agreement are I am not at liberty to discuss them

confidential.

unless a court order is issued, and then I will have to. Q. What about your Beverly Hills office? How

many people are employed there? A. Q. At what time period, ma'am? If it changed over the course of time, you may

tell me the changes over the course of time. A. Well, can you give me a time period that you

are interested in? Q. A. Since 1999. It has ranged from two to five, with the

current staff count four. Q. A. with us. Q. A. Q. A. Q. A. Who was Karen Hopkins? She is a paralegal. How many paralegals does JBC employ? At the moment, four. Who are they? Karen Hopkins, Anisa Singh, and the other two Who is Dan Wagner? He was one of our employees. He is no longer

paralegals, I don't know their exact names. Q. Does JBC have a compliance officer, FDCPA

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compliance officer? A. We have several attorneys that act in the

capacity of -- in your term, "compliance officer." Q. A. Who are they? Mark Brandon is one. Karen Nations and

Karen Wachs are two others, myself, Jack Boyajian. Q. A. Q. A. Q. with JBC? A. Q. A. Q. A. Less than a year. Where is she admitted to practice? New Jersey, Pennsylvania. Who is Laurie Brown? I believe Laurie Brown was at one time an How long has Karen Nations been with JBC? Over a year. Where is she admitted to practice? New Jersey, New York, Kansas. How about Karen Wachs? How long has she been

employee and later was used as a pseudo name for a collector. Q. Is JBC on the sixth floor or the seventh floor

of Broad Street or both? A. Q. We have space on both levels. How many employees are there at the

Broad Street location? A. At the moment, I believe there is a total,

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approximately, 70 or 80 employees. Q. A. What are their job titles, generally? Attorneys, paralegals, administrative staff,

clerical staff, data entry, accounting, collectors, receptionists, cleaning staff, customer service, computer services, you know, MIS. general categories. Q. A. Q. A. guess. Q. A. us that. Q. Who would know? I am sure there is documents that would tell I just don't know what they are. You said you were an owner of JBC. Is anyone How many are collectors? I don't recall exactly how many collectors. Can you give me a ball park or a percentage? I would be guessing, and I don't want to That would be the

else an owner of JBC? A. Q. No. Is the Boyajian Family Trust or Children's

Trust an owner of JBC? A. Q. A. Q. No. Why did JBC change from an Inc. to a PC? It didn't. There was a JBC & Associates, Inc. a couple of

years ago, right?

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A.

There was a company in New Jersey that was

called JBC & Associates, PC, Inc., yes. Q. There was a corporation called "PC" and then a

separate corporation called "Inc.," was there not, JBC & Associates, PC, and JBC & Associates, Inc.? A. Q. Asked and answered. Yes. I am talking about

Well, you said "PC, Inc."

two different corporations. A. misspoke. Q. correct? A. entity? Q. A. Are you? A singular entity that changed its name from When you say "it," are you speaking of an I don't think -- if I said "PC, Inc.," I PC is one corporation. Inc. is another.

And it changed from Inc. to PC; is that

Inc. to PC? Q. A. Q. Yes. No. So there was a JBC, Inc., which dissolved? Is

that what you are saying? A. Q. I didn't say that. All right. What is the relationship between

JBC, Inc. and JBC, PC? A. None at all.

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Q. A. Q. A. Q. A. Q. A. Q. A.

They had entirely different employees? Yes. And you were the president and owner of both? No. You were the president of both? Yes. And who was the owner of Inc.? Boyajian Family Trust. Do you have an office manager at JBC? When you refer to "JBC," do you want to

stipulate that you mean JBC & Associates, PC, the named defendant in this matter? Because otherwise, I am going

to ask you to clarify, because you keep going back to another entity that is independent of the defendants here. So you need to be really clear about who you are

asking the questions about. Q. A. mean? Q. You just described them as independent of the What did the independent JBC entity do? "The independent JBC entity," what does that

A.

Okay.

The word "independent" means separate

and distinct. Q.

Do you want to rephrase your question?

What separate and distinct business did

JBC, Inc. do?

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A.

JBC, Inc. is a New Jersey corporation that was

engaged in collection activities and no longer is doing so. And JBC, PC is a California professional

corporation, a law firm. Q. A. Q. What does JBC stand for? Nothing at all. Wasn't Jack B. Cilingiryan associated with a

JBC entity? A. I don't know of a Jack B. Cilingiryan. I know

a Jack Cilingiryan. is. Q.

I don't know what a B. Cilingiryan

Was Jack Cilingiryan associated with one of

the JBC entities? A. one time. Q. A. Q. Did he ever have any ownership in JBC, Inc.? No. Who is the office manager of JBC, the I believe he was an employee of JBC, Inc. at

defendant in this case? A. Q. A. Q. A. earlier. I have no office manager, so designated. Who are the officers of JBC, the defendants? It is just myself. You are the president? I think the -- I will clarify your question I think you asked me if I serve in any other

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offices.

I believe I serve as secretary and president,

and those are the two officers that is required under California state law. Q. A. Q. A. Is there a board of directors? No. It is a law firm.

Do you have a collection supervisor? We have several individuals that I believe

have been and continue to serve as lead collection -lead collectors, and if you -- I don't know what you mean by "a collection supervisor." Do you want to

define that, because I don't have anyone with that title. Q. What is the title of an employee who would

take a leadership responsibility? A. Q. A. now. Lead collector. How many lead collectors do you have? Several. I don't know exactly how many right

More than two. Q. A. Are they organized into teams? Not at the moment. We have tried that, but we

don't do that any longer. Q. Is JBC your principal source of income? MR. FIANO: Object to the form of that question. all. I am really not sure how that is material at

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A.

Actually, I don't understand your question.

Can you rephrase your question? Q. A. Q. Do you have get a salary from JBC? No. Do you get income from JBC? MR. FIANO: Object to the form. A. I don't know how to answer that because I Can you be more

don't know what you mean by "income." specific? Q.

Does money get distributed to you as a result

of any of your positions at JBC? A. Q. No. Do you get any type of W-2 or 1099 or K-1 from

A. Q.

Yes. And which of those three types of forms do you

A. Q.

K-1. And does the K-1 indicate that any money is

coming to you or has come to you from JBC? A. That is a very poorly formed question. I

don't know what you mean by that.

You need to rephrase I don't know

that because I can't answer that question. what "coming to me" means. Q. K-1 shows income?

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A. Q.

Several forms. Right. And the question is, does your K-1

show income to you from JBC? A. There are -- first of all, I object to the I didn't know that this

materiality of this question.

was any -- I don't know why you are exploring my income, but nonetheless, I do have an income attributable to me that I report on my income taxes from the K-1s, yes. Q. A. Q. A. Do you also get K-1s from ROA Hutton? No. Do you get W-2s from ROA Hutton? No. MR. FIANO: Object to the form. Q. A. Q. Do you get 1099s from ROA Hutton? No. Is your sole source of income reflected on the

K-1s that you get from JBC? MR. FIANO: Object to the form. I am not

sure how this is material at all, to the point where I will instruct him not to answer the question. I don't

know why we are -- I just don't know we are delving into Mr. Boyajian's personal finances. I can't even conceive

a link between this lawsuit and Mr. Boyajian's personal finances, especially when we are talking about income sources other than any defendant in this lawsuit. I am

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not seeing the link at all. Q. A. Are you a debt collector, Mr. Boyajian? I believe that that requires a conclusion of

law, and I don't know how to answer that question. Q. Do you directly or indirectly engage in

collection of debts? A. I am an attorney at law that provides services

to clients who have debts that are with consumers that I am engaged in recovering for. Q. Do you do that type of work in connection with

JBC & Associates? A. Q. A. Q. entity? A. I am not sure I understand that question. PC? PC? Yes. Do you do that type of work for any other

That is the law firm which I work in as an attorney, so I don't think -- I think the answer would be no. not sure what you are asking me. attorney with other firms? Q. A. Q. Yes. No. When you do lawsuit -- let me ask you, do you I am

Am I employed as an

do lawsuits on behalf of the clients of JBC, PC?

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A. Q.

Yes. And do you do those lawsuits in the name of

JBC, PC, or is the plaintiff another named entity? A. Q. Both. Who were some of the entities that you have

represented in lawsuits that you have filed for collections? A. They could include a number of entities, which

are our clients. Q. A. Can you name some? I am not going to disclose my client list to

Q.

Once you file a lawsuit, it is a matter of

public record who your client is; isn't that correct? A. That is not true. If I bring the suit on

behalf of a client as an assignee, that is not true. Q. A. You have to name the client? Assignor. I don't believe so, but that is for

you to find out, and if it is public record, you can find out yourself. Q. A. Where do you bring these lawsuits? Do you want to be more specific about when you

say "you"? Q. A. No. Okay, so you are talking about me personally?

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Q.

I am taking about you as an attorney for a

plaintiff. A. Q. Personally, personally. You understand the rules of ethics that even

if you are working as part of a firm, you are also acting personally? THE WITNESS: Can you reread the question, please? (Question read.) THE WITNESS: Thank you. Q. A. Q. California? California. Name some of the entities who have been

plaintiffs in the suits you have brought in California. A. I don't understand the relevance of this Is this case in

question relating to this case. Connecticut?

I don't know why we are discussing my

lawsuits in California. Q. A. Would you answer the question, please? I will not answer the question. The answer is

available to you in public records. Q. A. Tell me where I should look. Lexus Nexus would be one place to start.

There are several firms and entities that provide a full description of the caption, the captioned entities and

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lawsuits brought in Superior Court or other courts in California. Q. Do they also reveal the names of the lawyer

who brought them? A. Q. Yes, they do. Has JBC ever been licensed as a consumer

collection agency in Connecticut? A. Again, you need to be more specific to me when Did we stipulate that JBC -- when you

you say "JBC."

say "JBC," we mean the defendant, JBC & Associates, PC? I have asked you this question twice now, just to hurry things up. you mean. Q. JBC is a defendant in this lawsuit. You have Otherwise I am going to keep asking you what

told me there is no other JBC. A. No. Okay, fine. I will take that as an answer. We have applied

The answer to your question is no.

several times and responded to information requests several times. Q. We are waiting a decision.

When did you first apply for a license in

Connecticut? A. Q. A. I don't recall. It was several years ago.

And how many times have you applied? We only applied, I think, technically once,

but we have resubmitted information several times at

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least twice. Q. The ones you applied was several years ago?

Was that your testimony? A. Q. I believe it was in 2002. So in 2002, you submitted an application to

the Banking Department, and it has not been granted? A. Q. A. Q. A. Correct. Did you submit an application in 2003? Asked and answered. That is a "yes" or "no." My application was outstanding in 2003. I

didn't have to reapply.

I told you, I applied once, and

we were requested for documentation and information, and we responded. Q. Have you been in communication with the

Banking Department since your application? A. Q. A. Q. Members of my staff have been, yes. Who is in charge of that? Marv Brandon. So Marv Brandon is the one that would know

about the Banking Department licensing application? A. That would be my assumption, because he is

responsible for it. Q. When you applied in 2002, did you continue to

send collection letters into Connecticut?

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A. Q.

Yes. Were you aware that the law said that you

could not send collection letters into Connecticut unless you were licensed? MR. FIANO: Object to the form. A. It requires -- that answer requires a I interpret the law differently than

conclusion of law. maybe you do. Q. the law. A.

All right.

Well, tell me how you interpret

We are a law firm working in New Jersey,

communicating with debtors who may be residing in Connecticut, where transactions may have occurred outside of Connecticut. And we believe that we are

acting on the basis of acting as a law firm in New Jersey or Beverly Hills or Massachusetts, and communicating with debtors in Connecticut. Q. Is it your position that because JBC, PC is a

law firm, it does not have to be licensed in Connecticut? A. If that is your rephrasing of what I just

said, that is your interpretation of what I just said. Q. A. Is that what you just said? Well, I think that is what you have drawn as

an inference to what I said.

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Q. A.

Well, if I am incorrect, please tell me why. Well, I have answered the question. I mean,

if you want to infer what I just said as being that, then that's fine. I don't have a -- I will not make a If your inference is that I I have answered the

conclusion of law here.

said that, then that's what it is. question. Q.

Have you or JBC consulted Connecticut

attorneys with regard to the question of whether JBC has to be licensed in Connecticut? A. Q. question. A. Q. A. Q. A. Q. A. Q. A. That is privileged information. No, it is not. It is a "yes" or "no"

I am not going to ask you anything further. Yes, I have. And who have you consulted? That's privileged. It is not privileged. It is not privileged here? No, it is not privileged anywhere. Oh, yes, it is. Who you have consulted, no. The present firm that is representing me is

the one that I have consulted. Q. Is the present firm, which is Kleban & Samor,

negotiating with the Banking Department on your behalf?

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MR. FIANO: I am going to object to the form of that question. A. Now I don't understand. That I think is

privileged. Q. A. Q. I am asking about third party communications. No, they are not. What is the roadblock that is preventing JBC

from getting a license in Connecticut? A. I don't know. MR. FIANO: Object to the form. THE WITNESS: Sorry. MR. FIANO: That's okay. Have you personally contacted the Connecticut

Banking Department with regard to JBC licensing? A. Q. No. Do you have any procedures in place to prevent

letters from being sent, collection letters from being sent, to Connecticut residents? A. Q. I don't believe so. So as far as you know, JBC is still sending

collection letters into Connecticut? MR. FIANO: Object to the form. I don't

think he testified that they are sending letters into Connecticut. I think he just testified that they don't

have procedures to prevent letters being sent into

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Connecticut. MS. FAULKNER: He also testified earlier that they had continued to send letters. A. At that time. I didn't testify -- I think Am I correct?

your current question is as of today. Q. A. Q. Yes. I don't know.

Have you dealt with any Connecticut attorneys

who are representing debtors? A. I don't know what the question is. What do

you mean, am I dealing with any attorneys? Q. Have you dealt with? I didn't say, "Are you

dealing with."

In other words, do you have

communication with attorneys in Connecticut who are representing Connecticut debtors? A. Q. A. Other than this matter, no. I don't think so.

Would that be within Mr. Brandon's bailiwick? Well, he may know of someone that I am not

communicating with, but I don't know of any. Q. with? A. No. You are speaking about someone in Do you know of any that he is communicating

particular?

I mean, are you talking about a particular

attorney, other than yourself? Q. No, I am just asking.

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A. Q.

Oh, okay. JBC & Associates, Inc., was sued in

Connecticut in 1998 for not being licensed as a collection agency in Connecticut; is that correct? A. Q. I don't recall. Was there any effort by JBC & Associates, Inc.

to obtain a collection agency license? A. I don't know the relevance of this, but I

believe there was, yes. Q. A. Who would have conducted that effort? I don't recall those who were engaged other

than myself or Mr. Brandon at that time, so I am not sure. Q. A. When did Mr. Brandon come on board? I believe it was in '90 -- maybe it was in

'99, so it could have been myself or Mr. Cilingiryan at that time. Q. That would be the only two that I recall.

During 2001 and 2002, who was responsible at

JBC, the defendant, for drafting collection letters? A. For what states, and what do you mean by You will have to be more

"drafting," and which letters? specific. like that. Q.

I am not going to answer general questions

How many forms of collection letters did JBC

have in 2001 and 2002?

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A. Q. A.

Several hundred. Several hundred forms? Yes. Are you narrowing your jurisdiction to

Connecticut only? Q. A. Q. specific? A. Q. I don't recall. Did you submit those forms to the Connecticut Not yet. Oh, okay. Then my answer stands.

How many forms of letters were Connecticut

Banking Department in connection with your licensing application? A. If it was a requisite in the application, I am

certain we did, but I believe your time frame was -2001 is your question? Q. A. 2001, right, 2001 and 2002? So that would not have been relevant with

respect to the licensing because I believe we first applied for licensing in 2002, as I testified before. Q. and 2002. A. When your question related to the entire 2002. I did say your form letters for 2001

country, and I answered that appropriately, your next question related to 2001 in Connecticut. Q. Well, I'm sorry. I thought it related to 2001

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and 2002.

So how many form letters did you have in 2001

and 2002 directed to Connecticut? A. Well, I don't recall exactly in either year,

so I am not going to be able to answer that with specificity. Q. A. Where would the records be? Well, we don't retain letters that we don't

use any longer in form, but if you ask me a more current question, I am sure I can respond. Q. Where are the letters that you are currently

using for Connecticut? A. Q. A. Q. They are in our system, our server. Is your server at the New Jersey location? Yes. Tell me the process of sending a letter, say How would a letter be generated?

to [Consumer]. A. Q. A.

At the current time? Yes. How would a letter be generated to her?

We would identify a particular letter to be

sent to a particular debtor, and that letter would be requested on that account, and the system would scan all the accounts and see that there is a letter requested for a debtor, particular letter type and letter number. And then that would be transmitted. That information

would be transmitted to our letter production and

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mailing facility, which is outsourced, and the letters would be generated at that facility and sent out within 24 hours. Q. A. Is your outsource facility in Michigan? I think they are, yes. I think they are in

Detroit or in that area. Q. You said a letter would be requested for a Who decides what letter is

particular debtor. requested? A. Q.

Generally, I do. If a letter went to [Consumer], you yourself

would decide which letter should go to her? A. We use several different techniques to

decide -- I use several different techniques to decide which letters go to whom. So I am not sure if I

answered your question, but if I haven't, you will have to ask me a different question so I can be more specific. Q. A. If JBC were sending a letter to [Consumer] -So we are going to be -- we are going to now We are going to say that

hypothecate something, right? something exists that doesn't? Q.

We are going to say, how does it get produced.

How do you decide which letter goes to [Consumer], who lives in Connecticut? What are the factors?

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A.

Let's -- I don't like hypotheses, but we will Are you asking me what letters went

do what you want.

to [Consumer] when her account was introduced into our system? Q. A. Q. No, I am asking generally. Depends on a number of factors. That is what I am asking. What factors; her What factors?

residence, the creditor, the debt? A. Of course.

The question is what type of --

where did the debt originate, in what transaction, in what form. as a check? Was it an involuntary credit extension, such What is the location of that individual?

What is the amount of the check, the date of the check, the creditor itself, the original point of sale creditor? Has there been any payments made against that Do we have any reason to believe

account, at what time?

that it was a fraudulent transaction, occurring by someone other than the named debtor? Has there been a bankruptcy filed? Has there

been any reason to believe that the transaction occurred outside of the state, and therefore, applicable to other statutes? office? What was her last communication with our

Are there other accounts on our system that

relate to that debtor with the same demographic information? Those would be some.

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Q.

Are those factors built into the system or is

it something you decide per case? A. Q. A. Q. Both. Is -Or maybe the answer is either. Are your collectors allowed to generate or

decide what letters go out? A. Q. No. Who other than you decides what letters go

A. Q.

No one. Do you decide the -- I presume the letters Do you decide what variables go in?

have variables. A. Q.

I have just named those. No, into the letter itself, into the body of

the letter? A. Well, that would lead to a different -- I

think you are asking me, did I draft a letter, because the variables are what they are with respect to each named debtor, right? Are you asking me did I formulate

the letters as to what fields should go in there? Right? Q. A. Okay. The answer is yes. I have been involved. To

most of the degree, I make the final decision on what

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letters are sent out and what they contain. Q. A. Q. A. How many hours a week do you spend at JBC? Too many. Which means 10, 50? What does it mean? I work

I have never really taken account.

from my home as well as from the office as well as from the various offices around the country. answer that question fairly. Q. Is there a person named G. Strit, S-T-R-I-T, So I couldn't

at ROA Hutton? A. Again -MR. FIANO: Object to the form. A. Q. A. Q. A. Q. Program? A. question. Q. You just went from ROA Hutton on to me in your Are you asking me personally? I am asking JBC. You are the president. You Or the relevance, really? I mean, come on.

It is a "yes" or "no" question. No, there is not. Who uses that e-mail address? I don't know. I don't know.

Do you have something called a Check Recovery

are the boss. A. to "you."

You know what goes on there. You just went from ROA Hutton

That is fine.

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Q. A.

I'm sorry.

I confused you.

There was a document created sometime ago that

was labeled "Check Recovery Programs," which was a -well, that is the answer. I think your question was, do

I know of a Check Recovery Program? Q. A. Q. A. Q. A. Right. Yes. And is that in use at JBC? Not any longer. Was that trademarked? I believe an application was made, but I

believe that we never followed through on completing the trademark application. Q. How long was the check recovery program in

A.

It has never been in use with PC.

It was used

by JBC, Inc. Q. A. And what was the program? What did it do?

It was a restatement of work standards that

would be used during a collection cycle for specifically a bad check type of debt. Q. What is JBC'c, the current JBC's, volume of

bad checks as compared with other types of collection? A. I don't have a specific number in terms of

distribution or proportion.

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Q. A.

Would you say the majority is check recovery? The majority means more than 50 percent, I

think, and the answer is I don't know specifically, so I would have to guess. Q. A. Q. A. Sure. You want me to guess? Yes. I would say slightly more than half is checks, Do you want me to guess?

bad checks. Q. Are you familiar with the name Outsource

Recovery Management, Inc.? A. Q. A. Yes. And what is that entity? It is an entity that does several things. One

is recovers and works on commercial receivables in finding errors and/or mis-payments between companies. It has also recently engaged in acquiring distress debt. Q. checks? A. Q. Some, but not a majority. Does Outsource Recovery Management do its own Does any of this distress debt include bad

collection or does JBC do its collection for it? A. At the moment I believe it uses JBC

exclusively as a service provider. Q. Is this Outsource Recovery Management part of

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JBC or a subsidiary or somehow corporately related? A. Q. A. Q. A. Q. A. No. And are you the president of that? I was at one time. I am no longer.

Who is the president? It does not have a president right now. Who is the operations manager? Joel Gallante has been predominantly the

manager of that entity. Q. A. Q. A. Has he worked with JBC in the past? Yes, he has. And what is his position? He has been the customer service

representative. Q. A. Who is Anthony Esposito? He was at one time an employee of Outsource

Recovery Management. Q. A. Q. A. Q. Is he associated with Outsource or JBC now? No. How about Vito Capio? No. I am going to show you a picture of what was

Plaintiff's Exhibit K at Mr. Brandon's deposition and ask you whether you recognize the office that is pictured on that document.

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A.

I believe it is a picture on the website for

There are two pictures -- three pictures,

actually, on this exhibit, so I am not sure you are -- I assume you are referring to the larger of the three. Q. The picture with people in it. Are you in

charge of the JBC website? A. I was involved in its original creation to

some degree when it was JBC & Associates, Inc.'s website. Q. A. Who is in charge of the website at the moment? Well, we don't have someone right now directly

in the website management because it doesn't change much. It was static. It sits on our server.

Q.

Do you decide, or did you decide before it

became static, what went on the website? A. Q. A. Q. A. Q. A. Q. website? A. No. I think I answered that. You answered it as to JBC, Inc., I believe. Yes. What about JBC, PC? No, I am not involved. Who is Geronimo 57? I don't know. Do you outsource the development of the

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Q. website? A. Q.

When is the last time you looked at the

I don't recall. One of the things on the website says that you

can be assured that every account placed will be handled professionally and within full compliance of all state and federal laws. A. Q. A. Did you draft that?

I don't recall. Is that true? With respect to JBC & Associates, Inc., it may

have been true. Q. A. Is it true with respect to JBC, PC? Oh, I believe we are professional and comply

with local and state laws, yes. Q. It also says, "Our in-house attorneys are

fully responsible for insuring compliance by the staff associates and corresponding attorneys in all 50 states." A. Q. states? A. Q. Yes. Do you recognize the office that is pictured Is that true? We do our best. Do you have corresponding attorneys in all 50

on Exhibit K? A. That is a picture in the public domain that is

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used for graphical purposes. Q. So that is not a picture of a JBC office; is

that correct? A. Q. Not this particular one. And you don't know any of the people in that

picture; is that correct? A. remember. Q. This talks about strategic planning. "We I may have met some of them, but I couldn't

train our staff on the latest strategies and encourage input from all our staff." A. Q. A. Q. A. Is that true?

Are you referring to the same document? Exhibit K, yes. Exhibit K? Yes. I would say that would be applicable to both

JBC, Inc. and JBC, PC. Q. A. Who does the staff training? We have several individuals that rotate in It doesn't

training staff and retraining them.

necessarily mean the beginning nor the end of a training period. Q. A. Q. We train our staff consistently. Do you participate in the training? Occasionally, yes. Are there fairly regular staff meetings to

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pursue training? A. I don't know what you mean by "staff Do you mean management or do you mean

meetings."

actual -- what do you mean? Q. A. I generally meant collection staff. We have methods in which we train groups,

smaller groups. Q. groups? A. Q. Nonscheduled meetings, yes. What is the latest training session that you Does that involve periodic meetings of those

can recall for collectors? A. Q. A. Q. A. Q. A. Q. A. Q. In which I attended? Yes. About three weeks ago. What was the topic of the session? Accountability. Are your collectors paid an hourly wage? Yes. Are they also paid a commission? They have bonus structures. And does bonus structure depend on how much

they are able to collect? A. Q. Not necessarily. What does it depend on?

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A. arrivals.

Their attendance, the number of lates, late It includes their ratio of promises to broken

promises, time on the phone, time away from their seats, collection, gross dollars or net dollars collected, time period that they have been with the company, longevity, where they stand amongst their peers in all those categories, how they rate. Those are the only ones I can really think of right now. Q. A. Q. I am sure there is others.

Are there contests sometimes with staff? I don't know what you mean by "contests." You know, the first one to get a

hundred-dollar payment, first one to get a hundred-dollar promise, if you go over "X" dollars today, something like that could be tests, so that the staff are competing? A. Q. No, we don't do that. Exhibit K also says, "There is a focused and

tailored letter series complemented by daily contacts." Is that true? A. Q. Is what true, with respect to what, by whom? Exhibit K is JBC, PC's website. Is the

quadrant that talks about letter series true? A. puffery. Miss Faulkner, this is advertisement. It is

Every account is handled different, depending

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upon the components that we have already discussed and have answered your questions about. I didn't realize

that this deposition was relating to our advertising. Is it? Q. With regard to Exhibit K, there is a quadrant What

that talks about computer-aided auto strategies. does "computer-aided auto strategies" mean? A.

It means the process in which accounts are

handled through our system, the life cycle of that account, and its ability to take advantage of all of the JBC & Associates, PC resources, so that the account can be fully handled for the client and ultimately be recovered. Q. When JBC is assigned an account by a client,

is there a time frame in which it works the account and then sends it back to the client? A. Q. Occasionally. Depends on the client.

Generally speaking then, JBC would keep the

account until it recovered; is that correct? A. means. I don't know what "JBC keeping an account" JBC is assigned this work typically on a It is at the client's request that

contingency basis.

the accounts can be returned, and we return a great number of accounts. Q. JBC returns the accounts if a client asks for

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them?

Is that what you are saying? No. We will voluntarily return them as well.

A. Q.

What occasions would result in a voluntary

return to the client? A. If in my opinion, and those of others who work

accounts, all efforts have been exhausted. Q. Would there be occasions when an account is

closed but not returned? A. Q. Not typically. Who decides whether an account is returned if

the creditor does not ask for its return? A. Q. A. Q. Ultimately, I do. Does JBC report to credit bureaus? Just begun to. When you say "just begun," how long ago would

that have been? A. Q. Months. So then 2001 and 2002, you did not report to

credit bureaus? A. That's correct. MS. FAULKNER: Can we take a break for a few minutes? (Recess: 11:50 to 11:55 a.m.) Q. Mr. Boyajian, Marvin Brandon described his

role at JBC as essentially part time and his purpose to

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respond to attorneys' calls or letters. with that description? A. Q. A. hours. No. What is his role at JBC?

Would you agree

He is a full-time attorney who works flexible He comes to the office at the moment when he

can, and he has been in the office less and less, but he works -- he is available and works at home as well, so I would characterize him as a full-time attorney. supposed to do a lot more than just respond to attorneys, and I think he does. Q. A. What else do you think he does? I think he reviews accounts. He looks at -He is

he oversees litigation and Associates' network of attorneys that we use nationwide to litigate accounts. He reviews FDCPA requirements and state requirements and advises myself and others in the company as to what compliance requirements might be. attorneys and debtors. He speaks to He

He writes memos.

participates in training. responsibilities. Q.

Those would be general

Can you tell me, what is Attorney General

Carl McGraw's interest in JBC? A. Well, you will have to ask him yourself. MR. FIANO: Objection to the form.

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Q.

The attorney general seems to think that JBC

is violating West Virginia collection laws; is that correct? MR. FIANO: I am going to object to the form. Again, this is one particular line of questioning

that I am not sure how it is material at all to these proceedings. A. Q. A. Q. You are reading from his website. Yes. Ask him. Subpoena him and ask him. Did you appear on

He subpoenaed you.

December 12, 2003? A. Q. We did not have to. And why is that? MR. FIANO: I am going to object to the -I am going to object to the form of the question. Also,

if it is another legal proceeding going on, I don't know to what extent they have been advised by counsel in that matter. I don't know to what extent we are getting into

just communications that have to do with another legal proceeding. Q. Attorney General McGraw claims that he is

trying to get an order prohibiting JBC from collecting debts in West Virginia until it complies with West Virginia's collection agency licensing and bonding

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laws; is that correct? A. I don't know what the question is and I don't If you are reading from I can tell you that he

know what you are reading from. his website, it is what it is. has withdrawn that requirement. Q. A. Q. laws? A. Q. Yeah. What requirement?

The requirement you just read. To comply with West Virginia collection agency

Is it your position that JBC is in compliance

with West Virginia licensing laws? MR. FIANO: Object to the form. A. Q. Yes. And before November of 2003, was JBC in

compliance with West Virginia licensing laws? A. Indeed. MR. FIANO: Object to the form. THE WITNESS: I'm sorry. MS. FAULKNER: Why don't we mark this as Exhibit M? (Plaintiff's Exhibit M: Identification - described in Index.) Q. Mr. Boyajian, you seem to be familiar with the Have you also Marked for

West Virginia Attorney General's website.

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looked at it? A. Q. I recall seeing that. The attorney general said that several

consumers had complained that JBC was attempting to coerce payments of alleged bad checks by threatening arrest and criminal prosecution, harassing consumers repeatedly by telephone, and refusing to provide copies of canceled checks. MR. FIANO: Object to the form. Are you

asking him if knows that the attorney general said that or that is what the website says? Q. Is that correct, that the Attorney General

says that? A. I don't know. I know that that is what the

website says.

You shouldn't believe everything you read Caution, you should really be cautious

on the Internet. about that.

For example, you notice that he calls us "a New Jersey collection agency." We are not a New Jersey

collection agency, if he is referring to JBC & Associates, PC. Q. I assume he is.

What does the West Virginia statute say about

who is a collection agency? MR. FIANO: Object to the form. A. I don't know. Maybe you should read the

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statute. Q.

It might be more clear to you. What does Connecticut say about who is a

collection agency? A. says. I think it is clear in the statute what it

The interpretation is another issue. Are you familiar with the Bad Check Statute in

Q.

Connecticut? A. Q. A. Q. A. To some degree. What do you know about that? You mean the civil statute? Right. That there is a service charge, and that after

a certain number of days, if it is not recovered, after they receive letters, those debtors are potentially liable for the face value of the check, plus the service charge, plus the face -- other damages amounting to the same of the face value of the check. Q. A. Did you personally research that statute? I don't recall what my research was with that

particular statute. Q. Do you have a system to know whether a check

was passed in Connecticut that later bounced? A. us. Q. If you will look at Exhibit G, please, yes. It would depend on what the client provides

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Can you tell me what Exhibit G is? A. It is an in-artful attempt by the computer

system, CRS Software, to describe the various information relating to a particular account. Q. A. Why is this in-artful? Because it only lists one of the checks as the

top header of the fact sheet without identifying the fact that there is multiple checks that might be attached to this master account. printout. This is a master

The master number is the CRS number that is

on the top left corner, and it only identifies one particular check here. Q. How is a master number treated? Is it per any

accounts for Wilson Suede & Leather? A. No. A master is generally related to an

individual or an entity, singular, and any debts that would have matching characteristics to that, to those demographics of that individual or entity, would be consolidated into one master account. Q. that is. A. It is just one of the pages of a fact sheet The header is -- the top Let me show you Exhibit L and ask you what

which identifies payments.

portion of it is identical to what Exhibit G is. Q. Doesn't that reflect a different check?

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Doesn't Exhibit L reflect a different check than Exhibit G does? A. Yes, and that is part of the problem with So we have identified this as a This was

these fact sheets.

problem for CRS, and they are working on it.

printed on the same day as Exhibit G, and yet at the time that this was written, I know that there was 23 checks that your client had written and was bounced that we had among this master account. And only one or two

of them are appearing in the fact sheets. Q. Exhibit L has a different account number from

Exhibit G? A. No. It has a different -- it has the same

master number, 562183. Q. A. Right, but it has a different account number? That account number is the -- is not an

account number from the GW -- that is a GWA account number. It is a different -- CRS is a new system. GWA

was the old system.

And in the GWA system, our account

numbers were referenced differently, and so that is why these two different checks -- from the 23 or 25 that your client wrote back as bad checks, only two are being represented in this fact sheet, as compared to 25 of them. Q. I will have to ask you or Mr. Fiano where are

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the rest of the 25 checks, because I haven't got any documentation of that many checks. A. Q. Well, we will be happy to give you those. Thank you. Now, tell me the difference

between the CRS and the G -A. Q. A. Q. other? A. 2001, sometime in 2001. I don't recall the Well, could WA. GWA. Tell me the difference.

It is just two different computer systems. And when did you transfer from one to the

exact date.

I think it was April or May.

have been July. Q. Now, you said your clients give you

information about the factors that would lead to the Connecticut bounced check statute. What information did

Wilson Suede & Leather give JBC about this plaintiff? A. Well, it is not on this particular fact sheet,

but typically there is a transaction statement which is sent in electronically. These accounts are placed

electronically, and that would determine the state in which the transaction occurred. Typically, it is in the

same state that the owner -- that the debtor lives in, but not always. Q. In fact, very often it is not.

What information about this plaintiff did

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Wilson Suede & Leather give you other than what appears on this fact sheet? A. Q. A. "This fact sheet" being G -Yes, thank you, & L, of course. -- & L, check number, check date, transaction

state, driver's license number. Q. A. Where is the driver's license number? It is not on here. Neither is the state -It

state transaction code. is on your Document F. Q.

It is not on this document.

Right, but that isn't -- that is in answer to That is not a fact sheet issue?

discovery? A. Q. A.

Right. This document, G, starts on July 10th of 2001? That is probably only when we brought it over

from the GWA system. Q. And up on the left-hand side, above the double

lines, there is a previous GWA ID and an old GWA? A. Q. A. Q. Strategy. Strategy, 2/25? Yes. On the right-hand column of Exhibit G appears Do your initials or identification

to be initials.

numbers appear on Exhibit G? A. "SYS" is mine, but I generally go in as "SYS."

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The "R00" may also be something that I use as part of the process of actually initiating the letter. are not. Q. "MB" is for the second page of G. Can you tell what Brandon did on the second The rest

page of G? A. Q. A. Q. A. He changed the status to 31. And what does that mean? No. He changed the status to 49 from 31.

What is status 31? I don't remember. I think it is legal review And 49 is closed per

for legal process, I believe. attorney. Q.

That is what appears on the first page of G. On the first page of G, it says "date last."

What does that mean? A. "Date last," I don't know. That could be date

last -- it should be the date of the check, but I think for the conversion purposes, because it was brought over from GWA, it was the date received in the GWA system, I believe. Q. On 6/24, when Mr. Brandon changed the status, What

there is an old 20 lines or so ending with "DMP." does that mean? A.

Those were the accounts that were consolidated These were accounts

into those master, Miss Faulkner.

that were not part of this master, and they were merged,

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and that is how this account went from having four checks to having 25 checks. Q. A. And where do you see four checks? I don't. I know by reviewing with my office

this morning that previous to that consolidation with those mergers, there were four checks on this account. Q. A. To Wilson Suede & Leather? I don't know. I can find out for you. But

the two were to Wilson Suede & Leather, Check Numbers 287 and 189, but there was also two other checks, Check Number 186 and 292, written on January 28, 1996, and January 26, 1996, for 178.95 and 354.17 respectively. Q. A. Those were also written to Wilson? I have to check, but I think they may have I am pretty sure they were. I can't be very

been, yes.

certain, but I will try to get that information. Q. A. Q. A. Is Wilson any relation to Melville? They owned it. Melville owned it at one time.

Melville owned it at one time? Yes. They continue to service the checks

after they sold it. Q. A. Q. A. How about CVS? They own CVS. Who owns CVS? Melville.

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Q. A. Q. A. Q. A.

What about Marshall's? They owned that too, at one time. Melville owned it at one time? Yes. And when did they stop owning Wilson? I don't know. I don't know when they sold it,

but they kept the servicing of these returned checks as part of their deal. Q. Who were the other entities that may be listed

on page 2 of Exhibit G? A. Q. A. Foot Action is "FTA." I'm sorry? Foot Action. "K" is KV Toys. "Bob" is Bob's

Stores, and "Maral" is Marshall's. Us.

"Toys" is Toys 'R That is on

It has nothing to do with Melville.

page 3. Q. So Toys is the only one of all these that has

nothing to do with Melville? A. Q. A. Q. Apparently. Did Melville own Bob's? Yes. Is there any way the account would be opened

after Brandon said it had to be closed? A. Q. Yes. How would that happen?

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A.

By an inferior programming in CRS that we

discovered that once the account is closed, it has the opportunity to be merged with a new account, a new debt, without our knowledge. Unless someone actually saw that

and looked at all the notes prior to it, it actually changes the status to a new status -- the master account to a new status, and reopens all the debts. We have since corrected that, but at this point in time, it was actually happening without our knowledge. Did I answer your question? Q. A. Q. Are you finished with your phone call? Yes. If an account is reopened, does the history Excuse me.

that is Exhibit G get transferred as well? A. When it was being reactivated with our

knowledge and consent, I believe the history was still available, not on the same screen, but I think you can go behind the screen and see the history. Q. So if you were to sit down and look at

[Consumer's] account, if a new account came in, you would be able to see the old accounts; is that correct? A. If you looked for it, you would be able to see

At first glance, on the first screen, you would You would see the new account. You would see the

new status, and you would think that this is a new

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account, and that there is no other accounts associated with it. If you are perceptive enough to see a certain

flag that says that there is other accounts in the system, you can go in and look for the other accounts -the other debts, I should say. Q. Were any of these accounts that appear on

Exhibit G returned to Melville? A. Q. A. Q. Eventually you mean? Any time, that you can see right now on this? On this statement, I don't see any. Then if you look at page 2, it says "Merge

from," and a couple of lines, and then it says "UNRTRN." Can you tell me what those two -A. you. No. Without further research, I couldn't tell

The CRS Software has not been very user friendly,

and occasionally our server, as well as individuals in our company, incorrectly status something in their attempt to be doing something else. And this could have

been an occasion where an account was inadvertently returned and then unreturned as a corrected measure. Q. What do you mean by "returned" and

"unreturned"? A. I am assuming that the "UNRTRN" means I think

"unreturned," as I assume you are meaning that. your question is or was, are there any accounts

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returned, presuming meaning unreturned into this account, right? Q. A. Yes. And I was anticipating that and I was

answering the question. Q. I didn't understand the answer then, so you

have to try again. A. The CRS Software has not been user friendly.

It has occasionally returned accounts that were not intended to be returned based on a change of status, because it had not been properly flagged as a non-returned status. So if you change an account in the

status and it was incorrectly formulated as being a returned status rather than as an open status or as a legal status, it winds up returning an account. But you

really didn't intend to return it, so you have to unreturn it into another -- into a master account. Q. I guess I don't understand what "unreturned"

means then. A. Well, it just reverses your status. It just

reverses the incorrect activity of returning an account. Q. A. What does "returning an account" mean? Typically, you want to return an account to a

client because they either withdraw the claim, called it back. We determined that it was -- I think we have

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discussed this already.

Our efforts have been

exhausted, and we don't wish to continue working the account. And certain types of closed statuses are -- by

definition or by typical status, it would be returned, like paid prior to placement or placed in error, or you know, those type of statuses would be return statuses. Q. Has JBC or the other company, Outsourcing,

purchased any of these checks, [Consumer's] checks? A. Q. A. Q. A. Q. No. JBC doesn't purchase checks.

I said "or the other company"? Right. Neither one.

Neither one has purchased -No. If JBC had an agreement with anyone here to

collect these, it would have been with Melville; is that correct? A. No. Our agreement -- we have a standing And I believe Is that your

agreement with Toys 'R Us as well.

Toys -- two accounts were with toys. question? Q.

I understood from a previous answer that you

were collecting for Melville, that Melville owned all these companies? A. Q. Right. So my question is, were you in agreement with

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Melville as far as collection? A. Q. A. Q. A. Yes. Who was your contact at Melville? Apparently, it is Jim Bradford. Does Melville exist? I am not sure. I think Melville and CVS They are one and the

Corporation are now successors.

same, with CVS Corporation being a successor in interest to Melville. Q. Why don't you look at Exhibit H, which I think

has your -A. Q. There. So that Exhibit L, which is an assignment from

CVS to JBC, Inc. -A. Q. Right. -- is the sole authorization for JBC, PC's

collection efforts; is that correct? A. No. I think there is a document that If there is no

authorizes JBC, PC to pursue accounts.

document, there is an oral agreement, and we do work on oral agreements. This happens to be the assignment, the Is that

assignment of accounts to JBC, Inc., not to PC. your question? Q. A. Right. Yes.

This is only relating to Inc., not PC.

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Q.

Right, and I should have gotten an assignment,

if there was one, to PC. A. If there is one in your document request. It

might have been an oversight, and they thought that they were responsive to your requests, but obviously, not fully. Q. There is a 25-dollar amount on Exhibit G for a Is that included in the amount referred or

check fee.

added to the amount referred? A. Q. Referred from whom? I am just reading Exhibit G, which says Does that 243 include the $25? The

"Amount referred." A. No.

That is the amount of the check.

amount referred is the amount of the check. Q. And the 25-dollar check fee, is that something

that JBC adds or Wilson added? A. They add their own, and then they send us the

accounts, and we add whatever the statutory requirement or allowable amount is. Q. So if the amount referred was $243, then you

would add the $25? A. You are speaking of that particular account.

I answered this question. Q. Okay. Tell me about this particular account

that is on Exhibit G.

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A.

Well, in this particular account, it appears The 243.79 is the face

that that is the face value.

value of the check written and the $25 is added thereto. Q. A. Is that added at JBC? I have answered that question. When Melville

was working this account, there are other assignees or agencies or collection law firms. They would have their

own fee that they thought was applicable to Connecticut. I don't trust their fee schedule. I do my own. So I

only ask them to send me their face value, and we apply what we believe is the appropriate service fee. Q. A. So why does the $25 fee appear on Exhibit G? Because we believed at that time that is what

was allowable under Connecticut law to add as a service fee. Q. So that all your collection efforts added the

$25 to that 243 check? A. Q. In this particular case, yes. And is there a way that you can confirm that

this is what happened her here? A. I think it is reflective of the documents, so

I am not sure if you are asking me, did I have any further assurances that that is what happened here. Q. A. Yes. I am sure there is other places on my system

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that I can -- that would reflect that fact, yes. Q. A. Q. A. Where would you look? In different screens. What would the screens tell you? The fact that the face value of the check was

$243.79 and the service fee of $25 was added to it. Q. Would that service fee be included in the

collection letter? A. The first collection letter, it would state

that, yes. Q. A. First collection letter would say 243 plus 25? Yes. There is a grid that is presented on the

first letter. Q. letter? A. Appears that way, yes, but in this case, $20 Turn to Exhibit B. Is that the sample first

is being used because I think subsequent to that letter, the statute either changed or we interpreted it differently, so we are now adding $20 and not 25 per check. Q. So as of this letter of September 23, 2002,

you were adding a return charge of 25; is that correct? A. Q. A. No, 20. September 5th, September 5th.

Exhibit B -Right.

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Q. A.

-- is a letter dated September 23, 2002. Right. It looks like a real letter that went

to a real person, okay. Q. A. Q. A. Is that correct? I am not sure, but I assume so. Under "Return charge," it says "$25"? Yes, but I think that that is incorrectly

typed, and if you look at the face of the letter, the second full paragraph, it clearly states it is $20. Q. On the upper left of Exhibit B, there is a Does

number above the bar codes, which end in "CT."

that indicate that this is one of the letters that JBC uses in Connecticut? A. Yes. It would reflect that this was the first

letter that goes out for a bad check writer, that the transaction was in Connecticut. Q. A. Q. How can you tell it was the first letter? Because there is a "001" in front of the "CT." Plaintiff's Exhibit C is another letter also Is that the second letter that goes

dated September 23. into Connecticut -A. Q. A. Q.

It could be. -- as of September 23? It could be. If you look down at the bottom, there is a

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very, very -- "2 CT"? A. Q. Yes. Are you still using the sample letters in

Connecticut, B and C? A. I have answered what question. I do not know

if there are letters going to Connecticut right now. You asked me that question before. Q. I asked you -- I didn't ask you whether you

were using these letters. A. And I wouldn't know either case. I am not

sure if these letters have changed since September 23rd, 2002. Q. Were there more than two letters, two forms of

letters, going into Connecticut in September, 2002? A. Q. There could have been, yes. Do you have those stored on your system

someplace? A. Unless they were deleted, they would still be

there, yes. Q. Would you have your sample letters from

November, 2001, in your system? A. possible. Q. I doubt it, but it is possible. It should still be there. I did ask for that in discovery, and I would No, it is

like it, please.

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A.

They may be the same as these though, so you

might have gotten the response that you were looking for. In other words, if nothing changed between

November 1st of 2001 and September 23rd of 2002, then you received what you asked for. Q. But if something did change, I did not receive

what I asked for? A. That's right. What I am saying is that at the

time that we may have been responsive to your document production, it would have given us an opportunity to make those comparisons, whereas I don't have that ability today to do that. So the response you received

is probably in my mind more accurate than my testimony here today specifically relating to these two letters. Q. But if there is a difference, you will go back

in your machine? A. If that is your request, it will be a new What I am

request, and I will be able to address that.

saying is we may have already addressed -- I don't want the court record to appear as if we were agreeing that we were non-responsive because we could have been very much responsive. It is just you are asking a new

question that I can't answer. Q. The record will show that it is the same

question that we asked in discovery.

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MR. FIANO: I will say this for the We will go back into our system, and if there

were some letters in November of 2001 that were somehow different than what we have already disclosed, then we will definitely provide copies of any sample letters in November, 2001, that were different than what has been disclosed thus far. I think Mr. Boyajian will say that he thinks at the time, that comparison might have occurred already, and that was produced as responsive, as these letters being the same -- being essentially the same in content as anything on their system that might have been in place in November, 2001. Q. What procedures have you had in place in and

since November, 2001, to make sure that the right amount goes into the letter, right dollar amount, that is owed by the debtor? A. When we converted our information systems to

the CRS Software, they did not have a state by state ability to place a check fee amount automatically. have to design that into the system. We

And after several

series of errors and programming errors that we have discovered slowly, over time, I think we are now confident that we have properly identified the service fees that are related to each such check, or non-check,

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for that matter, if there is any additional fees that need to be added under the law. Q. A. Q. A. Q. A. Who is this CRS Software made by? CRS Software? They are a company.

That is the name of the company? Yes. Isn't that a widely used collection software? I don't know who their customer base is. I

know that when I was reviewing it, they were used by a large number of people who don't necessarily collect on bad checks but collect on other types of debts. Q. What safeguards do you have to make sure that,

for instance, a letter is sent out on the account, which is Exhibit G, only includes the 243 plus the 25, or the 20, as the case may be? A. I think I have answered that question. Are

you asking any additional safeguards other than the ones I have identified? Q. A. Yes. None that I can recall, none that I thought

was necessary at the time. Q. Do you know what the statute of limitations on

bounced checks is in Connecticut? A. I believe it is six years under contract law,

and I also believe that it is not a bar to either a

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collection effort or litigation. Q. Do you know what the criminal statute of

limitations on a bounced check is? A. I believe an untold statute of limitations I

is -- I believe it is two years over a certain sum. don't remember the exact statute. Q. A. Who is James Carty? I don't know who that is. (Plaintiff's Exhibit N: Identification - described in Index.) Q. Marked for

Would you look at Exhibit N, please, and tell

me what that is? A. It is a letter directed to the plaintiff,

dated November 26, 2001, from JBC & Associates, PC. Q. a code. A. Q. Down at the bottom left-hand corner, there is Can you tell me what that code might be? No, I don't know what that code is. Looks like a printer code to me. Up at the

top, above my client's name, there is a series of numbers. A. What do those mean? The first six digits, I believe, is the master And I have no

account number, which is the file number. idea what the other numbers mean. Q. A.

"- 3," would that indicate a third letter? No, but this could be a third letter. It

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could be a fourth letter. letter. Q.

It is certainly not the first

How did the balance on the Wilson Suede &

Leather account get to $1,971.80? A. Well, this is a letter that is unlike the

first letter, which has the details of more than one check. This letter is master-driven, which means it So in

picks up the first client name on the first debt.

this case, I believe the first debt on the system for this particular master number was the one written to Wilson Suede & Leather for $243.79, dated January 29th, 1996, Check Number 297. The amount represents four checks at the time that was on this account, on this master account, before the consolidation that happened in June of '02. And I

have already identified, besides the two that you have identified, as counsel for plaintiff in various summary motions and other documents you have presented to the court, that there were two other checks; namely, one, the check numbers that I gave, and those amounts, the face amounts, was 178.95 and 354.17. That is 17 cents,

and I believe that that 1,971.80, if you do the calculations, would be the face value of all those four checks, plus a service fee of $25 per check, plus damages equal to the face value of each of those checks,

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would total that 1,971.80. Q. So your sworn statement under oath in

discovery that there were only two checks was false? A. I think there was a -- because of the system

inaccuracies and incompetencies, we assumed that there were two checks, and there were actually four that related to this letter dated November 22nd, 2001. It It

was not an intentional attempt to not be responsive. was just simply an error. Q. Your office sent out another letter about a

year later, claiming that the balance was $10,000? A. Right, and that is because on June 24th, we

discovered -MR. FIANO: I am just going to state something for the record right now. The letter you are

about to start talking about is the subject of a third and separate action. I don't have -- I don't have an

issue with talking about that letter today, even though it is the subject of a separate action, but then at the same time, I also don't expect that Mr. Boyajian's deposition is going to be noticed in that action, to start talking about that letter again, if we are going to get into it today, I guess is what I am saying. MS. FAULKNER: Well, your expectation is wrong because I expected to have all the discovery

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before this deposition.

So obviously, Mr. Boyajian

isn't prepared on this letter or the subsequent letter. We will have another deposition. MR. FIANO: As I said, I am more than open to talking about this letter today, just as we haven't seen a copy of this third letter as well. But at the

same time, then I would anticipate that he is not going to have to be subject to another deposition when we are going to talk about this third letter again. I mean, I would assume if we are going to talk about it or we are going to have testimony with respect to this third letter, then we will do it at one time and in one deposition. And if that is not going to be

today, then I would just as much say that with respect to a line of questioning with respect to this letter, it is part of its own action. MS. FAULKNER: What was my question? (Question read.) BY MS. FAULKNER: Q. A. How was the 10,000-dollar figure calculated? You want to show me the letter? I don't know

what letter you are speaking about.

Are we going to

hypothesize that we had sent a letter or did we send the letter? Q. If your office sent a letter a year later

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which demanded $10,000, was that a mistake? A. So once again -MR. FIANO: Object to the form. A. -- we are going to presume that my office did

send the letter. MR. FIANO: I object to the form. want you to presume anything. then you can answer it. I don't

If there is a question,

I don't want you to presume

anything as a basis of an answer. A. The only answer I could provide you is that I

don't have the relevant information here, but when I see consolidation of 23 checks -- I'm sorry, 21 checks in addition to the four that existed as of November of '01, for a total of 25 checks, that your client obviously wrote to these various retailers, then the letter, if there was a letter, would probably have been the sum of all of those checks, plus service charges, plus statutory fees. And it would have calculated to the

10,000-dollar number that you have proposed that I assume happened. Q. checks. A. You said my client obviously wrote these Have you seen the checks? No, but I have enough information available to

me given to us from your -- from the retailers that were harmed by your client's actions and gave product and/or

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services to your client in good faith, assuming that they were receiving medium exchange that was negotiable, your client obviously intended to defraud my clients. And my clients gave me enough information, according to my belief, as an attorney, that I reviewed the information, and I believe your clients wrote these checks. Q. What information did you base that on, if you

didn't see the checks? A. My clients' information that is sent to me

electronically has consistently been correct when I have had the opportunity or the need to have a check given to me. It has consistently every single time reflected the

accurate name, address, information, and driver's license numbers. And therefore, if I receive that

information electronically, I have no reason to believe that they are incorrect, and if it is the same individual, living in the same location, with the same driver's license number, I am going to have a good faith belief that your client was the writer of these checks. And if you see the letter that you presented to me to review, which is marked as Plaintiff Exhibit N -Q. A. N? "N," as in Nancy, it clearly asks whether or

not this may have been an identity theft and requests

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information to reflect that. Q. A. Where does it ask that? Well, let's see. It says, "We see no reason

or excuse why you would avoid responding to our attempts to contact you. If you don't believe you wrote the bad

checks in question and this is a matter of fraud or a case of mistaken identity, you must provide us with a copy of the police report obtained from your local authorities and an affidavit of forgery from your bank. Otherwise, we will assume that the obligation is valid and information obtained at the point of check issuance is accurate." Q. You were telling this unrepresented person

that they must provide a copy of a police report; is that correct? A. Well, I am not sure that they were I wouldn't know one way or the other.

represented.

Your client didn't respond before or after this letter was sent to them, according to my records. Actually, your client did respond. apologize. I

According to my records, your client did not

refute that she was the writer of a check that, according to our notes, simply says that they were refusing to pay. Q. And who was Number 618?

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A. Q. A. Q. A. Q.

I don't know. Does that reflect a phone call? It reflects that there was a phone call, yes. And we are looking at Exhibit G, for 1,126.01? Yes. Now, you said the Wilson Suede & Leather is How do you know that?

probably the first account. A.

Because typically, I know when the facts

sheets, as they were previously printed, the first record that appears, the first check that appears on the first record -- well, you know what? I don't know. I

don't know, just it is generally my assumption that the first check that appears on the first fact sheet printed is usually the first -- the details of the first step. Q. A. Q. Which is the first fact sheet printed here? Appears to be Exhibit G. When JBC sent this November, 2001 letter, was

it aware of the date the check or checks were supposedly issued? A. Q. I am suspecting that we did, yes. Is [Consumer's] driver's license reflected

anywhere on Exhibit G? A. No, but I wouldn't expect that it would be.

Exhibit G typically does not print a driver's license detail.

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Q. A. Q. A. Q. A.

Where would the driver's license detail be? It would be on the screen. Why was I not given that in discovery? Because I am not sure that it is printable. We can always do a screen dump. Yes, we have tried that. Unfortunately, it

doesn't print out very nicely.

The system is a UNIC

space system, so it doesn't print the visual of what you see. It works off a dump terminal. Q. What is your authority for the position that

using a driver's license authorizes Wilson Suede & Leather to inquire about my client's indemnity and location? A. Because your client used the driver's license

number as a form of identification at the point of sale, and my client, Wilson Suede & Leather and Melville, are entitled to rely upon that. Otherwise, what would be

the purpose of presenting a driver's license number and capturing it at the point of sale if we aren't going to use it for purposes of identifying and/or locating that person, if in fact that negotiable instrument is dishonored? Q. Have you in fact ever used the driver's

license number to inquire as to identity and location in Connecticut?

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A.

Yes.

I am not sure about in fact in

Connecticut, but yes, we do, and we have. Q. A. When was the last time you did that? Could have been by someone in my organization It is one form of It is one way

as recently as yesterday or today.

identification, internal and external. that we consolidate accounts.

It is also one way that

we can locate an individual if they choose not to be located. Q. Do you do that by contacting the driver's

licensing authority in each state? A. Q. A. Depends on each state. Do you do it -Some states provide that as part of their --

as part of the service that they provide as a data form to entities that then re-compile it, and we buy from that service. There are other states where the driver's

license number is actually the same as the Social Security number, and we use that. Q. So it would have nothing to do with the

driver's license number, as far as -A. No. It is the driver's license number that

you are able to equate to a license -- to an SS number. Q. When the driver's license is the same as the

SS number, you would not need to contact the motor

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vehicle division? A. In most states, we would not. You could. We

also could, because if the Social Security number doesn't provide us the detail we need, we would do it through motor vehicle division if that information was available. Q. And if the driver's license is the same as the

Social Security number, you could probably get that from the credit bureau; is that correct? A. I have just answered that. I mean, it may be

sufficient, and maybe it is not. Q. What service do you use that gives you

drivers' license numbers? A. Q. A. Q. A. Q. There are various services. What services do you use? We use Lexus Nexus. Anything else? Not at the moment. So you are able to plug a license number into

Lexus Nexus and find out who it belongs to? A. Q. In some states. Let's see. Your letter asked to confirm that

the driver's license associated with this check is accurate. Is this driver's license anywhere on this

letter for [Consumer] to confirm?

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A.

No.

I think the request is to call in so that

we can confirm the license, but we don't necessarily place the license number on the check -- on the letter. Q. And once again, I think I have asked in

discovery and I asked Mr. Brandon, is there a driver's license number associated with this check? A. Q. A. Q. A. Q. you had? A. For those checks, yes, apparently. I can try I think it is. Exhibit G? No. How about Exhibit F? Isn't it provided for you?

That is the driver's license number? The CT 212, yes. It is the only driver's license number that

to confirm that, but I see no reason why it is wrong. Is that your client's driver's license number? Q. A. Is this an effort to collect a debt? You are saying we didn't give you one, and we

Q.

Now, your second to the last sentence says,

"We reserve the right to use any and all information we have obtained in further civil or criminal proceedings." What criminal proceedings has JBC initiated in Connecticut? A. Well, it doesn't have to be Connecticut only.

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This letter is a letter that is sent to more than just Connecticut, and if in fact this letter went to someone who bounced a check, for example, on JBC, which sometimes that occurs, and quite often it occurs, we proceed with criminal action. And we have brought

criminal action against Connecticut residents in New Jersey, and we have summoned them into court. So

yes, we do bring criminal action against Connecticut residents. MS. FAULKNER: We are not going to finish in 10 minutes. (Lunch Recess: 1:00 to 1:40 p.m.) Q. We were talking about Exhibit N, the letter of

November 22, 2001. A. Q. Yes. At the date of this letter -- I think you said

you knew the checks had been issued in '96, was it? A. Q. Yes. So was there any ability at that point to use

the old checks in some criminal proceedings? A. Well, that I believe requires a conclusion I think it is a matter

that I am not prepared to make.

of interpretation and law, but I believe that what we are reserving here was just simply the right to use the information in civil or criminal proceedings, so I think

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your question is related to specifically the dates of those checks and whether or not they would be subject to civil or criminal proceedings. But what we were simply

doing is they are reserving the right to do so. Q. But you didn't have a right to reserve at that

point as far as criminal proceedings; isn't that correct? A. I am not sure about that. I think that is a

conclusion of law that neither one of us can really rightfully make. If your client wrote another bad check

in that interim period of time, I think that would definitely be relevant. Q. A. To what? Whatever. I mean, I have a theory of law that

may not be yours, and that may -- I am not necessarily prepared to tell you, but I think there is no question that there would be a basis for using her pattern of writing bad checks, and many of them, not just a few. Q. A. These were all NSF checks, as far as you know? I don't know what you mean by "NSF." They are

non-sufficient funds versus stop payments? Q. A. Right. I believe they are all insufficient funds,

reasons for returns. Q. Is there something on Exhibit G that would

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tell you that? A. Not in this particular exhibit, but if the

client identified -- normally our clients identify stop payment as differently than an account closed or a non-sufficient fund issue. we handle them differently. Q. So these are handled as though they were NS, We take note of those, and

non-sufficient funds checks? A. Q. Or account closed. Or account closed, and how can you tell

whether there was an account closed? A. Well, if the client does not advise us to stop

payment, then we assume that it is either/or, and we treat them the same. Q. The first line of the Exhibit N, you say that

my client has refused an offer to voluntarily make restitution. A. When did that occur?

Well, this would be a third or fourth letter.

The first two letters that we provided in the responsive pleadings are letters that -- or some version of those letters would have gone to your client prior to this letter being sent. And the notation on our system shows

that she outright refused -- in speaking to 618, as reflected in Exhibit G, she outright refused to make payment.

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Q.

Where on Exhibit G does it show that any prior

letter or communication was made with my client? A. system. Q. And once again, you haven't provided me with a That would be in the GWA system, not in this

GWA system? A. That is because we don't have it. I am pretty

confident that those -- some were retained, and if it was retained, we would have provided it to you, but I will double-check on that. That server was -- once the

information was transferred, the server was no longer maintained. Q. If you will look at Exhibit E for a moment, Does that

the status closed is a 42 instead of a 49. make any difference? A. Q. A. Q. A. E 2? Exhibit E? Exhibit E? Status is 42.

Well, I think this was subsequent to an

inadvertent consolidation that occurred on this account, and I guess when it was closed a second time, because it reopened itself. instead of 49. And we closed it a second time to 42

The first time it was closed to 49 by

Marv Brandon upon, I believe, either the first action

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being initiated or notification that the debtor was represented by counsel. Q. A. Q. A. These are two different accounts, so -No, they are not. E is Marshall's and G is Wilson Suede? Well, I think what that is -- see, that is why

I am saying that the fact sheets are so inconsistent and so unreliable. that? Q. A. Right. Okay. What occurred -- and you will see the The CRS number is the same. You notice

notes are almost the same. Q. A. Right. Okay. What happens is that the notes for G go

to June 24th of '02, whereas the notes for E follow through from October through March of '03. And I can

tell that an account was inappropriately merged to a closed file, which is a problem we identified related to, actually, a case that you brought with the same plaintiff, because our assumption was that CRS work, like GWA, if you closed an account, it wouldn't consolidate to that account. It did here, and the reason I know is that that there is a strategy, one level three, which is part of a first notation, as part of a new file that comes

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in, not necessarily the first notation, but a file that comes in. And so obviously, this account was reopened

by the system, a letter was sent out, and then it was ultimately closed again to 42. Q. A. Q. You are talking about Exhibit E, here? That's correct. And why don't you tell me whether your

initials appear on page 3 of Exhibit E? A. If I review an account, I don't -- my system If I do something to the account, it

doesn't mark it. does.

I don't believe any of my initials or any of my

activities are notated here. Q. Towards the bottom, it talks about "SN/2."

Isn't that a code for a letter being sent? A. It typically is. I just don't know what "-CV"

means, because that is not an initial of mine, although it could be that it just inappropriately put it in there. It wouldn't be the first time I have seen an But that could be mine.

error on the ID. Q.

And then for 2/19/03, that is yours, "SYS;" is

that correct? A. notation? Q. Yes. I missed that, yes. Where is the

"SYS," yes. So on Exhibit E, still on Exhibit E, tell me

what happened after 6/24/02, the last DMP.

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A.

It appears an account came in because it was

transferred out of 345, which is a collection unit that typically brings the new accounts in, and it was assigned to an Associate, 235. And the "CCs" are It is like a default

basically no action is being done.

code, which I don't know why they appear, but no contact is made. Then for some reason, the account was moved around, was taken out of 235, then taken out of 559 and taken out of 349 on January 14th. That is -- transfer

account is the symbol, and the numbers that go past that is the number it was in and it was taken out of. So

"TR" is "telephone residence," and "OP," I believe, is "operator intercept" or something like that, which means no contact was made. And a wrong number was identified

as a wrong number, and that is what that telephone residence, "WN" means. And that was the number that was

attempted to be doc'd, so when you put a wrong number, that puts in the number that was wrong, and then it put "000" on the top on the first page. Then I sent notice, and I don't know -- it appears three times, but one letter is sent out. Sometimes what will happen is the system will generate it, but then because of some error system processing it, it kills it. And then you regenerate it, and it just

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puts another notice on all within roughly the same 24 hours. I don't remember what "DTGI" is, and then a similar "no activity" is recorded. And then the account

is -- the "CS" means "change status" from 11 to 42. Q. Does the "DLR" in the right-hand column --

would that indicate an automatic dialer, or don't you use those? A. If the dialer does not make contact, it puts

"DLR," but if it transfers the call, it will put in the person who the call was transferred to. Q. So on January 21, it was transferred to

Associate 624? A. Well, no. Actually, I would say that that

occurred on the 14th, because it was in 349, and 624 would be the last person -- well, no, hold on. see. Let me

This account is in collection unit -- okay, it is It could have been sent to 999, and it was

in 999 now.

Collection Unit 999, but it was 624 that actually took a call or made the call. Q. When Wilson or CVS sent this account to JBC,

did they also send any documentation at all, physical pieces of paper? A. checks. Generally, Melville does not send us physical Some clients do. Others don't. Typically,

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Melville sends us electronic information, capturing all the relevant data that is on the checks. And if we need

to, we will ask for the checks, and sometimes they can't retrieve it. It is a large organization, and depending on where it is located or what their circumstances are, they may or may not be able to recover the check. unusual, but they can't locate the checks. happens sometimes. Q. And it happened in this case that they could But it It is

not locate the checks? A. My understanding is in the first two cases

that is the case, but I don't think in the third it is. I think the third case, there is -- if we haven't made the request, we probably can get that because this is a more recent transaction and not -- I don't believe it is from Melville. Q. Do you know whether the creditor has sent

anything to the check writer before they send it to JBC? A. Their representation is that they do. They had a large I know

for a fact that Melville did.

collection environment of their own, and then they used a third party collection agency, and before they sent it to us. Q. Is that your question? Yes, but I didn't understand the answer.

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A.

I said in the case of Melville, which in the

case of your particular complaint in this case, is Melville because it is Wilson, I am confident that they did communicate with the debtor by way of a letter and/or a phone call. Q. Then you said something about third party

collections, and I didn't understand that. A. Right. Before they send it to us, my

knowledge of Melville is they use a first placement agency. Q. used you? A. Q. A. I believe so, yes. Do you know who that was? No. They varied. I have no idea what it was So Melville used a collection agency before it

at that time, who it would have been. Q. A. Q. Do you know if it was Capital Recovery, CRS? Could have been. So is there a way you can tell from Exhibit G

that this is a secondary? A. No. I do know that if it is coming from

Melville, it is secondary. Q. Melville? A. Yes. Always a secondary when it comes from

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Q. A. Q. A. Q.

Someone else has worked it? Yes. If you will look at Exhibit C -Yes. -- that letter does not contain any reference No,

to civil or criminal proceedings; is that correct? it doesn't contain any reference to criminal proceedings; isn't that correct? A. Q. Apparently not.

And Exhibit B, likewise, does not contain any

reference to criminal proceedings; is that correct? A. Q. Apparently, no. So at some point between November 22, 2001,

and September 23, 2002, did JBC decide to drop the reference to criminal proceedings? A. These are two different letters. This is a

different letter than this one. Q. A. Yes, I understand that. Why would you assume that it was in here at You are making the

one time and now it is not?

assumption that Letter C and/or Letter B at one time had criminal proceedings. Q. A. Q. No. Well then, I didn't understand your question. I am saying that Letter N has it in --

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A. Q.

Right. But Letter B and C do not have any reference

to criminal proceedings? A. Because they are not relevant. We are

reserving our rights in B or C as we were Letter N. Q. Why would you reserve such a right in Letter N

and not in B and C if that was available? A. Last answer. We do identify in both Letters A

and B that -- I'm sorry, Letters -- I think Letters B and C do refer to some proceedings that might be available as remedies to our client, particularly where it clearly says our clients may now assume and we may proceed with allowable remedies. So remedies are So these are two

identified, but not in those words.

different -- these are three different letters, so there is no reason to believe that anything changed between those time periods. Q. So you think there is probably a third letter

that goes into Connecticut that has the criminal proceedings in it still? A. Q. A. Q. and C? You mean similar to Letter N? Yes. At this current time? As of September 23, as of the same date as B

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A. Q. A.

It could have been. What about as of this particular time? It could be. I don't know for sure. I am

not -- I don't memorize the content of every letter in our system. Q. JBC has been through this many times around

the country; is that correct? A. That is a vague and arbitrary statement. I

don't know what "many" means. Q. A. Well, let us say 30? Well, I am not sure that that is true, but if

you say it is, then I will accept that, if you have some information that would determine that. Q. Do you get personally involved with each of

the lawsuits that are brought against JBC in responding to pleadings and discovery and so forth? A. Q. In some cases. Aren't most of the lawsuits that have been

brought against JBC based on excessive bounced checks fees? A. Q. A. No. What are they based on? Well, they speak for themselves, and they are

certainly part of the public domain, so I am sure that they could be -- if it is relevant, those things can be

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found out. one thing. Q. A.

But I don't think it is necessarily about It could be a number of different things.

What was the Littledove case about? Various elements. The Littledove case was a

class action lawsuit in California that was not fully adjudicated but settled by the insurance company for their own reasons and that had several prongs of the plaintiff's cause of action. Q. correct? A. I don't know if it was excessive check fees. One of them was excessive check fees; is that

It was -- particular prerequisites to such fees being due and owing was the allegation. Q. The most recent case seems to be a Johnson Are you familiar with that?

case versus JBC? A. Q.

No, I am not, and I don't see the relevance. I am trying to establish what I think is true,

and that is, that all of these lawsuits involved excessive check fees. A. Q. Again, I don't perceive the relevance of it. Did Johnson versus JBC involve an excessive

check fee? A. I don't know the case. I am not familiar with

the details. Q. Who is Karen Wachs again?

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A. office. Q. case? A. Q. A. Q. A. remember. Q. A. Q. A. Q. A.

She is one of our attorneys that works in our

She hasn't talked to you about the Johnson

I don't recall. How about Ecklund? I am not familiar with the case. How about Williams? I am not familiar with the case. I don't

Still? Still is a New Jersey case, I believe. Right. And I am involved in that. And what is the claim in Still? That is, obviously, available to you to review I still don't see the

as a part of your pleadings. relevance of it. Q. A.

Was part of the claim excessive check fees? Actually, it is not an excessive check fee

issue as much as it is an argument about what the service fee should reasonably be under the Uniform Commercial Code of New Jersey. Q. A. And what about Debski? I don't know him.

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Q. A. Q. A. Q. A. Q. A. Q. sorry. A. Q. A.

That is in New York, still open? I am not aware of it. Filed late September. No. You are not familiar with Limbach? No. What about Ecklund? What jurisdiction? I asked that before. That is Minnesota. I'm Limbach?

No, I don't know enough about it. Do you know anything about it? I know we were -- we had a lawsuit in

Minnesota, but that is all I know about it. Q. A. Q. A. Q. You don't know what the claim was? No. Justice? What jurisdiction? I can't interpret it, CANDC, California,

Northern District, I think, Justice? A. Q. A. Q. I have no knowledge about that. Lopez? No. What jurisdiction? Looks like Lopez versus

That is in Louisiana.

Sterling Jewelers and JBC?

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A. Q. A.

I think that has long been settled. Did that involve excessive check fees? Absolutely not. Sterling is -- that was not a

check client. credit. Q. A. Q. A.

Sterling was a voluntary extension of

Anselm? Which one? Oregon. Anselm?

That was long, long resolved, and that had

nothing to do with excessive check fees. Q. A. Q. A. case. Q. If you remembered it was Inc. instead of PC, Cardriche, C-A-R-D-R-I-C-H-E? Against PC? No, you are right, against Inc.? I don't remember any of the details of that

that is quite a memory. A. I just don't remember the details of what that

case was about. Q. A. Q. A. Q. A. Did that involve a check fee? What jurisdiction was that? It looks like Louisiana again. I don't remember. I don't remember.

Ferch, F-E-R-C-H, Wisconsin? Is that an Illinois case?

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Q. A.

Wisconsin? A Wisconsin case? No, I think that was a

statute of limitations issue. Q. A. Dinino? I don't know enough about that. It doesn't ring a bell. I don't know

that name. Q.

It was just filed December 31st, so maybe you

haven't been served yet. A. Q. A. It is possible. Kansas. Oh, yes, we were served. It is a statute of What jurisdiction is that?

limitations issue. Q. A. Q. A. Q. fees? A. Q. A. No, I don't believe it did. Defenvaugh, D-E-F-E-N-V-A-U-G-H? Right. That is a current California class Metz, M-E-T-Z? What jurisdiction? Looks like Indiana. That has been resolved. Right, but did it involve excessive check

action that has been resolved as a bona fide error. Q. A. Q. Did that involve check fees? Absolutely not. Gregory?

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A. Q. A.

What jurisdiction? Looks like Indiana again. I don't remember what the nature of that case

Q. A. Q. A.

Goodwin? What jurisdiction? Looks like Missouri, MO? I think that is a consolidated case with

Gregory, and it is all in the same jurisdiction, and it relates to statutory issues. Q. issues? A. Q. A. No, no, statute of limitations. Wheeler, Virginia? That has been resolved, and it had nothing to I'm sorry. You mean statutory, like check statutory

do with any kind of excessive fee, but a communication issue. Q. A. Q. A. Q. A. Q. A. Rose? I don't know that one. That is in Illinois? Doesn't ring a bell. Burch, B-U-R-C-H? What jurisdiction? Pennsylvania? Is that recent?

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Q. A. Q. A.

Just closed in January 15th of 2004. As a settled case? Presumably. No. I don't know.

Pennsylvania has no statutory fees, and

therefore, there is no excessive fee claim in Pennsylvania. I don't recall what that was, but it was

not a fee issue. Q. A. Q. A. Q. A. Elliott? What jurisdiction? Illinois? Still open? Still open? That may be part of the -- part of the class Do you have plaintiff

action that is in Illinois. counsel on that sheet? Q. A. Q. A. Q. A. Q. A. Q. A. No. Okay.

I don't know what that is.

Thomas? Jurisdiction? Pennsylvania. Still open? Just filed. Just filed? December 19th. Don't know enough about it. I don't know

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anything about it. action is. Q. A. Q. A. Q. A. filed? Q. A. Q. A. Ingraham?

I don't know what the cause of the

Don't know anything about it. Filed January 8, 2004? Probably not even served. Morgan? Don't know anything about it. When was it

October of 2003. What jurisdiction? Indiana. That is part of that -- there is a four-state

class action that is now in Northern Illinois District. Q. A. Q. Does that involve the check fees? It is the statute of limitation issue. Statute of limitation, okay. MS. FAULKNER: I think that is all. you very much. MR. FIANO: Thank you. No questions. Thank

(Deposition concluded: 2:15 p.m.)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NOTARY PUBLIC JACK H. BOYAJIAN SUBSCRIBED AND SWORN TO BEFORE ME, the undersigned authority, on this the , 19 . day of

SANDERS, GALE & RUSSELL 203-624-4157

3.3 Excessive Charges and False Threats, Motion for Partial Summary Judgment
UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT [CONSUMER], Plaintiff, v. JBC & ASSOCIATES, P.C. JACK H. BOYAJIAN MARVIN BRANDON, Defendants. Case No. December 15, 2003 PLAINTIFFS MEMORANDUM IN SUPPORT OF SUMMARY JUDGMENT Plaintiff sued under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. 1692e, -f, and -g, and the Connecticut Unfair Trade Practices Act (CUTPA). Plaintiff seeks statutory damages, punitive damages, attorneys fees and costs. Summary judgment is appropriate, because whether the defendants collection letter at issue violated the FDCPA is a question of law for the Court under the least sophisticated consumer standard. Schweizer v. Trans Union Corp., 136 F.3d 233, 237-38 (2d Cir. 1998), citing Russell v. Equifax A.R.S., 74 F.3d 30, 33 (2d Cir. 1996) and Bentley v. Great Lakes Collection Bureau, 6 F.3d 60, 62-63 (2d Cir. 1993). Plaintiff meets the essential three requirements to establish an FDCPA violation: (1) the plaintiff is the consumer who allegedly owes the debt or a person who has been the object of efforts to collect a consumer debt, (2) the defendant collecting the debt is a debt collector as defined, and (3) the defendant has engaged in any act or omission in violation of the prohibitions or requirements of the law. Kolker v. Duke City Collection Agency, 750 F. Supp. 468, 469 (D.N.M. 1990); Riveria v. MAB Collections, Inc., 682 F. Supp. 174, 175-76 (W.D.N.Y. 1988); Withers v. Eveland, 988 F. Supp. 942, 945 (E.D. Va. 1997); Whatley v. Universal Collection Bureau, Inc., 525 F. Supp. 1204, 1206 (N.D.Ga. 1981). I. PLAINTIFF IS A CONSUMER In response to the Complaint, defendants admitted that plaintiff is a consumer. II. DEFENDANTS ARE DEBT COLLECTORS

Defendants admitted that JBC and Brandon are debt collectors. Based on defendant Brandons deposition, defendant Boyajian is the principal of JBC, drafted and reviewed the letter sent to plaintiff, and makes the significant collection decisions including the letters to be sent, the amount to be demanded, and whether to pursue civil or criminal consequences. A debt collector is any person who uses an instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. 15 U.S.C. 1692a(6). Boyajian is a debt collector under either test. III. PRINCIPLES OF CONSTRUCTION 1. The FDCPA is a strict liability statute. Proof of only one violation is sufficient to support judgment for plaintiff. Bentley v. Great Lakes Collection Bureau, Inc., 6 F.3d 60 (2d Cir. 1993). 2. The FDCPA is liberally construed in favor of the consumer to effectuate its purposes. Cirkot v. Diversified Financial Systems, Inc., 839 F. Supp. 941, 944 (D. Conn. 1993). 3. The focus of the FDCPA is on the conduct of the debt collector, not on the conduct of the consumer. Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998). 4. At the outset, it should be emphasized that the use of any false, deceptive, or misleading representation in a collection letter violates 1692e regardless of whether the representation in question violates a particular subsection of that provision. Clomon v. Jackson, 988 F.2d 1314, 1320 (2d Cir. 1993). 5. The standard used to determine whether something is deceptive or misleading is whether the least sophisticated consumer could have been deceived or misled. Clomon, 988 F.2d at 1318. The least sophisticated consumer is a naive, credulous, gullible, ignorant, unthinking, person of below-average sophistication or intelligence with a rudimentary amount of information about the world and a willingness to read a collection notice with some care. Id. 6. A letter is deceptive or misleading if it is subject to an inaccurate yet reasonable interpretation by the least sophisticated consumer. Russell v. Equifax A.R.S., 74 F.3d 30, 36 (2d Cir. 1996) 7. Whether a letter is deceptive or misleading from the perspective of the least sophisticated consumer is ordinarily a question of law for the Court, where a defendant has not conceded liability. Schweizer v. Trans Union Corp., 136 F.3d 233, 237 38 (2d Cir. 1998), citing Russell v. Equifax A.R.S., 74 F.3d 30, 33 (2d Cir. 1996) and Bentley v. Great Lakes Collection Bureau, 6 F.3d 60, 62 63 (2d Cir. 1993). 8. The FDCPA prohibits collection practices that violate other state or federal laws. Picht v. Jon R. Hawks, Ltd., 236 F.3d 446, 448 (8th Cir. 2001); Gaetano v. Payco, 774 F. Supp. 1404, 1414 15 (D. Conn. 1990). IV. ATTEMPTING TO COLLECT A MULTIPLE OF ANY AMOUNT WAS UNLAWFUL Defendants were collecting on alleged January 1996 debts totaling $402.78. Their November 2001 demand letter sought payment of $1971.80: Unless we receive immediate payment of $1971.80 or sufficient documentation that relieves you of this obligation, we reserve

the right to use any and all information we have obtained in further civil or criminal proceedings. The amount demanded was over four times the amount of the alleged debt. The creditor could have added $20 to the amount of each check (unless certain exceptions applied). Conn. Gen. Stat. 52-565a(i). A creditor who jumped through the statutory hoops might be awarded additional damages to be determined by the court up to the face amount of the checks. 52-565a (a)-(h). Since the creditor did not go to court to seek additional damages, and assuming none of the exceptions applied, the maximum amount of the underlying debt was $440.78 (adding $20 for each check). Assuming interest could accrue at 8% (Conn. Gen. Stat. 37-1(a)), only $211.57 could be added to the $440.78. Plainly, the balance on any Wilson Suede & Leather debt could not be anywhere near the $1971.80 figure demanded under threat of criminal or civil proceedings. The FDCPA prohibits both misrepresenting the amount of the debt (1692e) and the attempt to collect any amount not allowed by law (1692f(1)). Defendants violated the FDCPA by seeking a large multiple of any possible underlying debt. Duffy v. Landberg, 215 F.3d 871 (8th Cir 2000); Kojetin v. CU Recovery, Inc., 212 F.3d 1318 (8th Cir. 2000) (per curiam); Picht v. Jon R. Hawks, Ltd., 236 F.3d 446 (8th Cir. 2001). V. MENTION OF CRIMINAL PROCEEDINGS WAS UNLAWFUL Defendants were collecting on alleged January 1996 debts totaling $402.78. Their demand letter sought payment of $1971.80: Unless we receive immediate payment of $1971.80 or sufficient documentation that relieves you of this obligation, we reserve the right to use any and all information we have obtained in further civil or criminal proceedings. Brandon admitted that mention of criminal proceeding should not be in JBCs letters because it may be unlawful. 15 U.S.C. 1692e generally prohibits false, deceptive or misleading representations. Subsection (2) prohibits the false representation of the legal status of the debt. Subsection (4) prohibits the representation or implication that nonpayment will result in the arrest or imprisonment unless the action is lawful and the debt collector intends to take such action. Subsection (5) prohibits the threat to take any action that cannot be legally taken, or that is not intended to be taken. The two alleged checks at issue were supposedly written in 1996 for amounts of less than $250.00. At best, any criminal violation would be a Class C misdemeanor. Conn. Gen. Stat. 53a-128(c). The time for criminal proceedings on any such checks expired one year after they were written. Conn. Gen. Stat. 54-193(b). Mention of an unavailable criminal proceeding is one of the seriously unlawful collection tactics which the FDCPA was enacted to prevent. VI. MENTION OF CIVIL PROCEEDINGS WAS UNLAWFUL Defendants letter mentioned the use of further civil or criminal proceedings. No criminal proceedings were possible. No civil proceedings were intended, according to Mr. Brandon at his deposition. The letter was sent only two months before the longest possible statute of limitations expired (six year contract statute). No defendant could bring suit. Brandon and Boyajian were not admitted to practice in Connecticut. Only Wilson could bring suit. Defendants did not even have copies of the checks to sue upon.

A deceptive threat of civil action is a classic, well-known violation of the FDCPA. E.g. Pipiles v. Credit Bureau, Inc., 886 F.2d 22, 25-26 (2d Cir. 1989); Bentley v. Great Lakes Collection Bureau, 6 F.3d 60, 62 (2d Cir. 1993). VI. MENTION OF MOTOR VEHICLE AUTHORIZATION WAS FALSE Defendants form letter asserted, Be advised our records reflect you may have used your drivers license and therefore you may have authorized our client to inquire as to your identity and location in its efforts to recover the funds due. Before your states motor vehicle division is contacted regarding such information . . . . (Emphasis added.) To the least sophisticated consumer, the letter could well be interpreted as a threat to her drivers license or ability to register a motor vehicle. More significant is that defendants assertion is a serious misrepresentation of the law. Federal law since 1994 and parallel state laws severely restricted the ability to obtain information from a drivers license database. 18 U.S.C. 2721; Conn. Gen. Stat. 14-10. Express consent of the license holder was a condition to obtaining records. 14-10(f)(2)(J); 18 U.S.C. 2771(b)(11). Under no circumstances could the mere use of a drivers license authorize[] our client to inquire of any states motor vehicle division. The statement was objectively false. Of course, since defendants already had plaintiffs identity and location, it did not need to contact any third party. 1692b. Contact with the motor vehicle department was specifically prohibited by the FDCPA 1692c(b) since use of a drivers license is not direct consent. The representation that anyone could obtain information from the motor vehicle department based solely on permission implied from use of a drivers license was false. VII. DEFENDANTS VIOLATED STATE LAW Connecticuts Creditors Collection Practices Act and Regulations parallel the FDCPA. Reg. Conn. State Agencies 36a-647-5 to 7. Connecticuts Consumer Collections Agency Act and Regulations parallel the FDCPA. Reg. Conn. State Agencies 36a-809-3(f), (g). By violating these parallel state laws, defendants have violated CUTPA, Conn. Gen. Stat. 42-110b. Even if the Banking Department had not already determined by regulation that the practices were unfair or deceptive, a violation of a federal law is a per se violation of CUTPA (unfair or deceptive practices): Dial Corp. v. Manghnani Inv. Corp., 659 F. Supp. 1230, 1238-39 (D. Conn. 1987); Chauvin Intern. Ltd. v. Goldwitz, 927 F. Supp. 40, 49 & n.22 (D. Conn. 1996); Pfizer, Inc. v. Miles, Inc., 868 F. Supp. 437, 442 (D. Conn. 1994); Nabisco Brands, Inc. v. Kaye, 760 F. Supp. 25, 29 (D. Conn. 1991); Zoological and Ecological Research Found., Inc. v. Crabtree-Haas Imports, Inc., 7 CSCR 1144, 1145 (Oct. 19, 1992) (Katz, J.). CONCLUSION Plaintiff has presented four serious violations of which the individual defendants, whose principal practice with JBC is debt collection, and who are admitted as lawyers in other jurisdictions, are charged with knowledge. Partial summary judgment as to liability alone should enter for plaintiff for these violations of the FDCPA and state law. THE PLAINTIFF

BY__________________________ [ATTORNEY FOR PLAINTIFF]

3.4 Excessive Charges and False Threats, Reply Memorandum for Partial Summary Judgment
UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT [CONSUMER], Plaintiff, v. JBC & ASSOCIATES, P.C. JACK H. BOYAJIAN MARVIN BRANDON, Defendants. Case No. March 1, 2004 PLAINTIFFS REPLY MEMORANDUM IN SUPPORT OF SUMMARY JUDGMENT Defendants Opposition (1) concedes the four violations; and (2) reveals two more violations. Defendants attempt to raise factual questions, but they contradict their prior sworn responses to discovery, relate to collection efforts outside the statute of limitations, or are entirely unsubstantiated by admissible evidence. Preliminarily, whether plaintiff wrote any of the checks is irrelevant to the substance of the motion for summary judgment, and to the applicability of the FDCPA. Keele v. Wexler, 149 F.3d 589, 595-96 (7th Cir. 1998) (declining to adopt a fraud exception to the FDCPA). Her purported failure to dispute or respond to JBC also has no factual or legal significance. 15 U.S.C. 1692g(c). Also, Plaintiffs argument does not depend on any prior letters; they have no bearing on the text of the letter at issue, even if their existence and contents could be substantiated by admissible evidence other than by bald assertions of counsel. Def. Mem. at 5. Erroneous calculation. Defendants admit that, viewing the letter as sent only on behalf of Wilson Suede, as the letter itself asserted, the amount demanded was excessive. They were constrained to reveal that there were two other undisclosed 1996 checks to Bobs necessary to make the figures add up to the amount demanded.

Even including the two unmentioned checks, the sum demanded is unlawful. 243.79 25.00 243.79 158.99 25.00 158.99 178,95 25.00 178.95 354.17 25.00 354.17 face of 1996 checks Service fee 52-565a(i) statutory damages

Total $1971.80

The Service Fee is limited by Connecticut statute to up to $20. It applies to checks written after the 1997 effective date of 52-565a(i). Defendants overcharge was at least $25 per 1996 check, demanded in violation of 15 U.S.C. 1692f(1). More reprehensible is the defendant lawyers demand for statutory dishonored check damages, which shall be in an amount to be determined by the court in light of the circumstances, but in no even shall such amount be greater than the face amount of the check or four hundred dollars, whichever is less. 52-565a(c). Lawyers should know that they could not unilaterally demand any statutory penalty without having the amount first determined by the court a provision undoubtedly enacted to prevent such oppression and significant monetary overreaching as these defendants engaged in. Def. Mem. at 4. Veach v Sheeks, 316 F.3d 690, 693 (7th Cir. 2003) (amount of debt misrepresented because consumer could not be liable for any amount until determined by court); Picht v. Jon R. Hawks, Ltd., 236 F.3d 446, 448 (8th Cir. 2001) (dishonored check statute requires a judicial determination of any penalty, up to a statutory amount); People ex rel. Daley v. Datacom Systems, 585 N.E.2d 51, 68 (Ill. 1991) (extrajudicial demand for an amount between statutory minimum and maximum penalty unlawful); Intern. Bur. of Fraud Control v. Clayton, 544 N.E. 2d 416, 421-22 (Ill. App. 1989) (civil damages liability for NSF checks arises only after litigation). Criminal proceedings. Defendants have not interposed any legal or factual opposition to summary judgment on the basis of their misleading and oppressive reference to criminal proceedings. Def. Mem. at 9. The letter says, We reserve the right to use any and all information we have obtained in further civil or criminal proceedings. In Connecticut, criminal proceeding must be brought by a prosecutor within the statute of limitations. Private individuals, whether creditor or collection agency, have no power to proceed criminally. Here, the checks were well beyond the criminal statute of limitations. Moreover, it was factually and legally impossible for defendants themselves to proceed criminally. They dont even purport to have the checks, or copies thereof, essential to any prosecution. Yet the least sophisticated consumer was meant to conclude that criminal proceedings by were possible. Once again, defendants offer no admissible evidence of any ability or intent to use any information in criminal proceedings. Since at least 1988, the mention of criminal proceedings has been known to violate the FDCPA. The Federal Trade Commission Official Staff Commentary on the Fair Debt Collection Practices Act, 53 Fed. Reg. 50097, 60106 (Dec. 13, 1988): Section 807(5) prohibits the threat to take any action that cannot legally be taken or that is not intended to be taken.
... 4. Threat of criminal action. A debt collector may not threaten to report a dishonored check or other fact to the police, unless he actually intends to take this action. ... 6. Threat of legal or other action. Section 807(5) refers not only to a false threat of legal

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action, but also a false threat by a debt collector that he will report a debt to a credit bureau, assess a collection fee, or undertake any other action if the debt is not paid. A debt collector may also not misrepresent the imminence of such action. A debt collectors implication, as well as a direct statement, of planned legal action may be an unlawful deception. For example, reference to an attorney or to legal proceedings may mislead the debtor as to the likelihood or imminence of legal action. 7. Illegality of threatened act. A debt collector may not threaten that he will illegally contact an employer, or other third party, or take some other action that cannot legally be taken (such as advising the creditor to sue where such advice would violate state rules governing the unauthorized practice of law). If state law forbids a debt collector from suing in his own name (or from doing so without first obtaining a formal assign ment and that has not been done), the debt collector may not represent that he will sue in that state.

Civil Proceedings. Def. Mem. at 10. Once again, defendants have not provided any admissible evidence of an intent, ability, or authorization, to pursue civil proceedings. They have not pursued civil proceedings to this date. Under the FTC Official Staff Commentary cited above, defendants (lawyers and a law firm) have known such a threat was unlawful since at least 1988. Defendants themselves could not bring civil proceedings, since they did not own the account and had no standing. We cannot reserve any right we do not have. Rosa v. Gaynor, 784 F. Supp. 1, 5 (D. Conn. 1989) (the only possible construction of we is the defendant and others). Motor Vehicle Information. Defendants Mem. at 13-14 offers only a speculative statutory analysis without evidentiary support. The least sophisticated consumer is not expected to engage in arcane analysis of what the words might mean, rather than what they convey. The least sophisticated consumer is a naive, credulous, gullible, ignorant, unthinking, person of below-average sophistication or intelligence with a rudimentary amount of information about the world and a willingness to read a collection notice with some care. Clomon v. Jackson, 988 F.2d 1314, 1318 (2d Cir. 1993). A letter is deceptive or misleading if it is subject to an inaccurate yet reasonable interpretation by the least sophisticated consumer. Russell v. Equifax A.R.S., 74 F.3d 30, 36 (2d Cir. 1996). First newly admitted violation. The letter at issue asked that plaintiff voluntarily make restitution for the above referenced returned check(s) you wrote to our client(s). While the letter at issue names, and on its face purports to be on behalf of, only Wilson Suede, defendants now claim that the letter also concerned two Bobs Stores checks. Def. Mem. at 3. They thereby admit that the letter was deceptive since it mentioned only one creditor and did not disclose material information that the amount demanded was also on behalf of another entity. Omission of a material fact is misrepresentation under common law (Restatement of Torts (Second) 529, 551) and deception under the Federal Trade Commission Act of 1934. Ingham v. Eastern Air Lines, Inc., 373 F.2d 227, 239 (2d Cir. 1967); Bailey Employment System, Inc. v. Hahn, 545 F. Supp. 62, 67 (D. Conn. 1982), affd, 723 F.2d 895 (2d Cir. 1983). The least sophisticated consumer could not tell from the face of the letter that it also referred to checks written to an entity other than the one named. Plaintiff could not exercise her statutory right under 1692h without such information. Second newly admitted violation. The letter at issue asked that plaintiff voluntarily make restitution for the above referenced returned check(s) you wrote to our client(s). However, the sum demanded was not for restitution, as represented. Instead, the unitemized dollar figure included the face amount of four checks, an illegal $25 fee for each of the checks, and the 11

statutory penalty for each check , which could be imposed only by a court. The defendants misrepresented the character, amount or legal status of the debt in violation of 15 U.S.C. 1692e(2) and affirmatively concealed that defendants were attempting to collect unauthorized amounts. 1692f(1). Ascertainable loss. Defendants Mem. at 14 confuses the concept of actual damages with the separate statutory provision regarding ascertainable loss. Even absent actual damages, plaintiff is entitled to the injunctive and punitive relief she seeks. Under CUTPA, there is no need to allege or prove any amount of an ascertainable loss. Hinchliffe v. American Motors Corp., 184 Conn. 607, 612-14, 440 A.2d 810 (1981). Whenever a consumer has received something other than what he bargained for, he has suffered a loss of money or property. Id. at 614. Adoption of the defendants view, that ascertainable loss is equivalent to actual damages, would eviscerate the private remedy provided by CUTPA. Id. at 616. The private loss indeed may be so small that the common law likely would reject it as grounds for relief, yet it will support an action under the statute. Weigel v. Ron Tonkin Chevrolet Co., 690 P.2d 488, 494 (Or. 1984) (citing Hinchliffe). Defendants theory that ascertainable loss necessitates a monetary payment is untenable. Aurigemma v. Arco Petroleum Products Co., 734 F. Supp. 1025, 1028 (D. Conn. 1990) (court refuses to address ascertainable loss because CUTPA does not require a plaintiff to prove a specific amount of actual damages to make out a prima facie case). Ascertainable loss is a term of art which entitles a plaintiff to bring an action. Once an action is brought, the plaintiff may seek actual damages, or if there are no actual damages equitable relief. Section 42-110g provides:
(a) Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42110b, may bring an action . . . to recover actual damages. . . . The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper. .... (d) In any action brought by a person [the court may award attorneys fees]. . . . In any action brought under this section, the court may, in its discretion, order, in addition to damages or in lieu of damages, injunctive or other equitable relief.

Being accused of owing a debt which one does not owe is ascertainable loss. Cox v. Sears, Roebuck & Co., 647 A.2d 454, 464 (N.J. 1994); Sorge v. Transworld Systems, Inc., Civil No. 3:94CV71 (JBA) (D. Conn. Sept. 19, 1996); Rizeck v. Connecticut Coast Fitness Centers Inc., 7 Conn. Ops. 469, 471 (Apr. 30, 2001) (rejecting the need to prove actual damages). It is enough if the consumer received something different from what had been bargained for. [citing Hinchliffe v. American Motors Corp., 184 Conn. 607, 612 (1981)]. Depriving a consumer of information required to be provided by law, or giving a consumer deceptive or misleading information causes ascertainable loss. Denino v. Valenti, 1993 Conn. Super. LEXIS 2686, 1991 CaseBase 8193 (1993). Collecting a debt through deception or unfair means also causes ascertainable loss. Halloran v. Spillanes Servicenter, Inc., 41 Conn. Supp., 587 A.2d 176, 181 (1990). Plaintiff has ascertainable loss when she got a letter that violated state and federal laws. She has a cause of action, even if she recovers only $1.00 in nominal damages. Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 499 (1995). Her monetary loss, to be ascertainable, may be

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as little as a 33 stamp, a toll call, or gas or parking to visit an attorney. Wiginton v. Pacific Credit Corp., 634 P.2d 111 (Hawaii 1981); Shubach v. Household Finance Corp., 376 N.E.2d 140, 141 (Mass. 1979) (toll calls and travel to meet with counsel). St. Paul Fire & Marine Ins. Co. v. Updegrave, 656 P.2d 1130, 1134 (Wash. Ct. App. 1983) (consumers damages include the consumers inconvenience, financial considerations such as loss of time in helping prepare the case). Plaintiff bases her claim for punitive damages on the fact that defendants, attorneys and a law firm, have intentionally persisted for many years in collecting in Connecticut without a collection agency license (despite representing that they are licensed in every state); sent the unrepresented plaintiff a form letter which seriously misrepresented Connecticut law and the consequences of writing a dishonored check; intentionally abused their status as attorneys to create (unfounded) fear of civil or criminal litigation in the recipients of the form letter; sent their intimidating attorney form letter without so much as receiving or reviewing any check or the creditors practices as a basis for forming an opinion about how to manage plaintiffs case; and routinely imposed charges not permitted by law in their form letters. No attorney should be involved in sending such deceptive form letters to unrepresented consumers. Any lawyer familiar with the FDCPA, as these defendants are required to be, knows that such tactics have been held to violate the FDCPA since at least 1988. The law cannot be so interpreted as to be helpless to deter their longstanding and persistent abuses. There are no disputed factual issues. Two principles are applicable here. First, a party cannot create an issue of fact by contradicting earlier sworn testimony. Wilson v. Westinghouse Elec. Corp., 838 F.2d 286, 289 (8th Cir. 1988); Martin v. Merrell Dow Pharmaceuticals, Inc., 851 F.2d 703, 706 (3d Cir. 1985). As the Second Circuit said in Perma Research and Dev. Co. v. Singer Co., 410 F.2d 572 (2d Cir. 1969), to allow a party to raise an issue of fact contradicting his own prior testimony would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact. Id. at 578. Thus, defendants Rule 56 Statement denying Paragraph 13, contradicting their earlier sworn discovery response, does not create an issue of fact. The balance of Defendants Rule 56 Statement is not supported by either admissible testimony or documents and is thus ineffectual to oppose summary judgment. D. Conn. Local Civ. Rule 56(a)3. Second, the recital of facts at Def. Mem.3-4 has no evidentiary support. Assertions in legal memoranda are not evidence and cannot by themselves create a genuine issue of material fact where none would otherwise exist. See Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980); British Airways Board v. Boeing Co., 585 F.2d 946, 952 (9th Cir. 1978), cited with approval in Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994). Hearsay assertions quoted in the memorandum, such as the ownership of Wilsons and other similar remarks of Boyajian, are likewise inadmissible. The Court is respectfully requested to disregard any unsubstantiated facts asserted in the defendants memorandum; nor need it search the deposition for support since most of the deposition pages do not appear to support the assertions in the memorandum. CONCLUSION Plaintiff has presented six serious violations of which the individual defendants, whose principal practice with JBC is debt collection, and who are admitted as lawyers in other jurisdictions, are charged with knowledge. To quote the Seventh Circuit, The violations of the

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Fair Debt Collection Practices Act disclosed by this record are blatant, and reflect very poorly upon attorney Lawents professionalism. Shula v. Lawent, No. 03-3194 (7th Cir. February 26, 2004). Partial summary judgment as to liability alone, including liability for punitive damages, should enter for plaintiff for these violations of the FDCPA and state law. THE PLAINTIFF

BY__________________________ [ATTORNEY FOR PLAINTIFF]

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3.5 Unlicensed Collecting, Contacting Represented Consumer, Excessive Amount, Time Barred Debt; Motion for Partial Summary Judgment
UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT [CONSUMER], Plaintiff, v. JBC & ASSOCIATES, P.C. ET AL., Defendants. Case No. March 29, 2004 PLAINTIFFS MEMORANDUM IN SUPPORT OF PARTIAL SUMMARY JUDGMENT Plaintiff sued under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. 1692e, -f, and -g, and the Connecticut Unfair Trade Practices Act (CUTPA). Plaintiff seeks statutory damages, actual damages, punitive damages, attorneys fees and costs. Summary judgment is appropriate, because whether the defendants collection letter at issue violated the FDCPA is a question of law for the Court under the least sophisticated consumer standard. Schweizer v. Trans Union Corp., 136 F.3d 233, 237 38 (2d Cir. 1998), citing Russell v. Equifax A.R.S., 74 F.3d 30, 33 (2d Cir. 1996) and Bentley v. Great Lakes Collection Bureau, 6 F.3d 60, 62 63 (2d Cir. 1993). Plaintiff moves for summary judgment against each defendant as to liability alone on the following violations which are undisputed or indisputable. The defendants violated the Fair Debt Collection Practices Act, 15 U.S.C. 1692e and 1692f, and parallel state law in at least the following respects: Defendants drafted and sent plaintiff a collection letter dated February 17, 2003 (1) even though they were not licensed to collect as required by Connecticut law; (2) even though they knew plaintiff was represented by counsel; (3) which demanded considerably more than any possible amount of the alleged debt; (4) which threatened to sue on a time-barred debt. SUMMARY OF FACTS APPEARING IN LOCAL RULE 56(A)1 STATEMENT In February 2003, defendants (two out of state lawyers and their law firm) were not licensed in Connecticut to act as a consumer collection agency. Defendants knew that plaintiff was represented by counsel, since she had already sued them for their November 2001 letter demanding $1,971.80 on behalf of Wilson Suede & Leather, on underlying checks totaling $402.78 (Civil No. 3:02CV 1069 (MRK)). Yet, in February 2003, defendants sent a collection letter to plaintiff demanding some $10,000 in restitution for NSF checks written to Wilson Suede & Leather. Defendants discovery revealed that the amount represented 22 checks which

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plaintiff purportedly wrote to five separate entities over the course of five days in 1996, totaling just under $5,000.4 For years, Defendants have sent collection letters to Connecticut residents on behalf of such ubiquitous entities as Toys-R-Us, Kids-R-Us, CVS, Marshalls, Linens & Things, Foot Action, Bobs Stores, KayBee Toys, and Acme Markets. Among them, defendants had been sued for collecting in Connecticut without a Consumer Collection Agency license seven times since 1998, before this suit was filed in 2003. Defendants did not apply for a Connecticut Consumer Collection Agency license until October 2002. No Connecticut license has yet been issued. Defendants sworn Connecticut licensing application states that they do business in all fifty states. Likewise, Defendants web site proclaimed it is a Nationwide Legal Collection Firm. You can be assured that every account placed will be handled professionally and within full compliance of all federal and state laws. Our in-house attorneys are fully responsible for ensuring compliance by the staff, associates and corresponding attorneys in all fifty states. The web site touted their nationwide Check Recovery Program which offers its retail clients the opportunity to utilize the statutory civil penalties adopted for forty-four out of fifty states. Twenty-seven states, in addition to Connecticut, require that a collection agency be licensed. Of those states, defendants are licensed in none of them. West Virginia has sought information about their collection activity despite being unlicensed. In 1998, Massachusetts forbade their collection activity absent proper licensing. Neither Mr. Brandon (a New Jersey lawyer), nor Mr. Boyajian (a California lawyer), the only in-house attorneys at the time of this suit, have taken any responsibility to see to Connecticut licensing. In each of their depositions, they proclaimed that the other was responsible for the licensing. Applicability of the FDCPA. Plaintiff meets the essential three requirements to establish an FDCPA violation: (1) the plaintiff is the consumer who allegedly owes the debt or a person who has been the object of efforts to collect a consumer debt, (2) the defendant collecting the debt is a debt collector as defined, and (3) the defendant has engaged in any act or omission in violation of the prohibitions or requirements of the law. Kolker v. Duke City Collection Agency, 750 F. Supp. 468, 469 (D.N.M. 1990); Riveria v. MAB Collections, Inc., 682 F. Supp. 174, 175-76 (W.D.N.Y. 1988); Withers v. Eveland, 988 F. Supp. 942, 945 (E.D. Va. 1997); Whatley v. Universal Collection Bureau, Inc., 525 F. Supp. 1204, 1206 (N.D.Ga. 1981). 1. Plaintiff is a consumer. In response to the Complaint, defendants admitted that plaintiff is a consumer. 2. Defendants are debt collectors. Defendants admitted that JBC is a debt collector. Based on defendant Brandons and Boyajians deposition, each is a debt collector. A debt collector is any person who uses an instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. 15 U.S.C. 1692a(6). Boyajian and Brandon are debt collectors under either test.

Although plaintiff denies writing any of the checks, whether plaintiff wrote any of the checks is irrelevant to the substance of the motion for summary judgment, and to the applicability of the FDCPA. Keele v. Wexler, 149 F.3d 589, 595-96 (7th Cir. 1998) (declining to adopt a fraud exception to the FDCPA).

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3. Defendants have violated the FDCPA. Defendants drafted and sent plaintiff a collection letter dated February 17, 2003 (1) even though they were not licensed to collect as required by Connecticut law; (2) even though they knew plaintiff was represented by counsel; (3) which demanded considerably more than any possible amount of the alleged debt; (4) which threatened to sue on a time-barred debt. As the Third Circuit stated in Crossley v. Lieberman, 868 F.2d 566, 570 (3d Cir. 1989):
Abuses by attorney debt collectors are more egregious than those of lay collectors because a consumer reacts with far more duress to an attorneys threat of legal action than to a debt collection agency committing the same practice. A debt collection letter on an attorneys letterhead conveys authority and credibility.

I. DEFENDANTS PERSISTENT COLLECTION OF DEBTS IN CONNECTICUT FROM CONNECTICUT RESIDENTS ON OBLIGATIONS INCURRED IN CONNECTICUT WITHOUT THE LICENSE REQUIRED BY THE CONNECTICUT CONSUMER COLLECTION AGENCY ACT VIOLATES THE FDCPA The FDCPA generally prohibits the use of any false, deceptive, or misleading representations or means in connection with the collection of any debt. 15 U.S.C. 1692e. The prohibition is so significant that much of it is repeated in 1692e(10). Subsection 1692e includes a non-exhaustive list of examples of the type of representations or means which the Act prohibits. The list includes false or deceptive implications as well as affirmative misrepresentations. 1692e (1), (3), (4), (6), (7), (12), (13), (15), (16). At the outset, it should be emphasized that the use of any false, deceptive, or misleading representation in a collection letter violates 1692e regardless of whether the representation in question violates a particular subsection of that provision. Clomon v. Jackson, 988 F.2d 1314, 1320 (2d Cir. 1993); Russell v. Equifax A.R.S., 74 F.3d 30, 33 (2d Cir. 1996); Pipiles v. Credit Bureau of Lockport, Inc., 886 F.2d 22, 27 (2d Cir. 1989) (Congress painted with a broad brush in the FDCPA to protect consumers from abusive and deceptive debt collection practices, and courts are not at liberty to excuse violations where the language of the statute clearly comprehends them).The FDCPA is liberally construed in favor of the consumer to effectuate its purposes. Cirkot v. Diversified Financial Systems, Inc., 839 F. Supp. 941, 944 (D. Conn. 1993) (Cabranes, J.).
Congress, through the FDCPA, has legislatively expressed a strong public policy disfavoring dishonest, abusive, and unfair consumer debt collection practices, and clearly intended the FDCPA to have a broad remedial scope. See S.Rep. No. 382 at 4 (1977) (In addition to [the] specific prohibitions, this bill prohibits in general terms any harassing, unfair, or deceptive collection practice. This will enable the courts, where appropriate, to proscribe other improper conduct which is not specifically addressed.), reprinted in 1977 U.S.C.C.A.N. 1695, 1698.

Hamilton v. United Health Care of Louisiana, Inc., 310 F.3d 385, 392 (5th Cir. 2002). Case law agrees that a violation of state law is also a violation of the deceptive practices prohibition of the FDCPA. Veach v Sheeks, 316 F.3d 690, 693 (7th Cir. 2003); Picht v. Jon R. Hawks, Ltd., 236 F.3d 446, 448 (8th Cir. 2001) (The FDCPA prohibits, inter alia, the use of

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debt collection practices that violate state law). Here, defendants violated at least 1692e(5) (action that cannot legally be taken); 1692e(9) (misrepresentation of documents state authorization or approval), and arguably several other subsections. A practice is deceptive if it has the tendency or capacity to deceive. FTC v. Algoma Lumber Co., 291 U.S. 67, 81, 54 S.Ct. 315, 78 L.Ed. 655 (1934); Charles of the Ritz Distributors Corp. v. FTC, 143 F.2d 676, 680 (2d Cir. 1944). Omission of a material fact (that the collection agency is not licensed to collect) also constitutes misrepresentation under common law (Restatement of Torts (Second) 529, 551) and deception under the Federal Trade Commission Act of 1934. Ingham v. Eastern Air Lines, Inc., 373 F.2d 227, 239 (2d Cir. 1967); Bailey Employment System, Inc. v. Hahn, 545 F. Supp. 62, 67 (D. Conn. 1982), affd, 723 F.2d 895 (2d Cir. 1983). Such an omission of a material fact also leads to the type of implication repeatedly barred by the FDCPA. Federal courts, including one in this District, have held that a collection agency that collects local debts in the forum state without a license as required by the state violates 1692e. Unlicensed activity is deceptive. As long ago as 1990, Judge Daly recognized the significant right of Connecticut debtors to have the defendants qualifications as a collection agency reviewed by state authorities. Gaetano v. Payco of Wisconsin, Inc., 774 F. Supp. 1404, 1415 n. 8 (D. Conn. 1990) (unlicensed collection activity violates 1692e of the FDCPA prohibiting deceptive practices, as well as 1692f prohibiting unfair practices). Gaetano was cited with approval in Clomon v. Jackson, 988 F.2d 1314, 1319 (2d Cir. 1993), and followed in Sibley v. FirstCollect, Inc., 913 F. Supp. 469 (M.D. La. 1995); Russey v. Rankin, 911 F. Supp. 1449, 1458-59 (D.N.M. 1995); Kuhn v. Account Control Technology, Inc., 865 F. Supp. 1443 (D. Nev. 1994). [It was also cited with approval by Judge Cabranes in Lindbergh v. Transworld Systems, Inc., 846 F. Supp. 175 (D. Conn. 1994).] It is this body of law that the defendants have contravened. To be sure, the Ninth Circuit rejected Gaetano by fiat, with no analysis, in Wade v. Regional Credit Assn, 87 F.3d 1098 (9th Cir. 1996).5 The Wade opinion, however, contains no analysis or rationale to explain its holding and no rule or methodology that might permit another court to adopt its conclusion. Wade is an anomaly where the court in any event held only that an isolated letter and call to a single debtor who owed her lawyer divorce fees, and who had moved into a state that required licensing during the course of the collection, was not a violation of the FDCPA. This conduct would not be a violation in Connecticut either, since Connecticuts licensing requirement applies only when an out of state collection agency collects for creditors who are located within this state or regularly collects . . . for creditors who are located outside this state. Conn. Gen. Stat. 36a-801(a). Here, defendants have been collecting from Connecticut residents for a long time, for businesses located in Connecticut. The Second Circuit recognizes the significance of the protections of Connecticuts Consumer Collection Agency Act, an analysis not undertaken in Wade. In Silver v. Woolf, 694 F.2d 8, 12 (2d Cir. 1982), the court recognized that [D]ebt collection practices are intimately related to the use of state courts and the regulation of the practice of law in those courts. Some provisions of the Connecticut [collection agency] statute are explicitly aimed at preventing the illegal practice of law and otherwise regulate the relationship of collection agencies to Connecticut attorneys. Defendant attorneys / law firm fit squarely within the aim of the state law. Bates v. C & S Adjusters, Inc., 980 F.2d 865 (2d Cir. 1992) is also instructive. There, Judge
5

See also, Carlson v. First Revenue Assurance, 2004 WL 385210 (8th Cir. Mar. 3, 2004) (follows Wade); National Consumer Law Center, Fair Debt Collection 5.5.8.5 (5th Ed. 2004).

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Newman suggested that a collection agency could avoid suit in a distant venue by endorsing Do Not Forward on the envelope (id. at 868) and thereby showed collection agencies how to easily avoid unintentionally sending letters into a state in which they were not licensed. Analogously, case law agrees that a violation of state law by the unauthorized practice of law is also a violation of the deceptive practices prohibition of the FDCPA. E.g., Herbert v Monterey Financial Services, Inc., 863 F. Supp. 76, 80 (D. Conn. 1994); Poirier v. Alco Collections, Inc., 107 F.3d 347 (5th Cir. 1997) (unauthorized practice of law violates 1692e(5); Martinez v. Albuquerque Collection Services, 867 F. Supp. 1495 (D.N.M. 1994) (unauthorized practice of law violates 1692e(2) and 1692f(1)). Defendants (lawyers and their law firm) longstanding illegal collections in Connecticut, and their failure to be licensed in any of the states in which they do business, indicates a scofflaw attitude unbecoming to attorneys, and such reckless indifference as to call for punitive damages. Unlicensed collection activity is unfair. Section 1692f provides that A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Like 1692e, the section lists certain types of conduct, [w]ithout limiting the general application of the foregoing. The practice of unlicensed collection activity is not only a deceptive or misleading means within 1692e, but is also unfair under 1692(f) because it is within at least the penumbra of some common law, statutory or other established concept of unfairness. FTC v. Sperry & Hutchinson Co., 405 U.S. 233, 244 n. 5 (1972). Unfairness depends on (1) whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise - whether, in other words, it is within at least the penumbra of some common-law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers (or competitors or other businessmen). Statement of Basis and Purpose of Trade Regulation Rule 408, Unfair or Deceptive Advertising and Labeling of Cigarettes in Relation to the Health Hazards of Smoking. 29 Fed. Reg. 8355 (1964) (emphasis added). For a collection agency / law firm to continue to collect in a state where it is not licensed fits within the concepts of unethical, oppressive, or unscrupulous. Indeed, under the specific provisions of Connecticut law, unlicensed collection agency activity is a crime. Conn. Gen. Stat. 36a-810. Substantial injury to consumers results from Connecticuts inability to investigate, regulate, or protect its citizens from these defendants serious and persistent substantive violations. Competitors who comply with licensing laws and Connecticuts collection standards (which parallel the FDCPA) are at a competitive disadvantage with these scofflaw defendants. One of the express purposes of the FDCPA is to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged. 15 U.S.C. 1692(e). II. DEFENDANTS VIOLATED THE FDCPA BY COMMUNICATING WITH PLAINTIFF WHO WAS KNOWN TO BE REPRESENTED BY COUNSEL In 2002, Plaintiff had sued defendants for their collection efforts on the Wilson checks. Yet, defendants sent her another letter in February 2003, demanding five times the amount that they had demanded for the Wilson checks in November 2001. Defendants plainly violated 1692c(a)(2), which mandates that a collector deal only with an attorney once it has knowledge of representation. The Statements of General Policy or Interpretation Staff Commentary on

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the Fair Debt Collection Practices Act, 53 Fed. Reg. 50097, 50104 (1988) (hereinafter FTC Staff Commentary) Commentary 805(a)(3) says, If a debt collector learns that a consumer is represented by an attorney in connection with the debt, even if not formally notified of this fact, the debt collector must contact only the attorney and must not contact the debtor. Here, there was formal notice of representation as to the purported Wilson debt, by prior lawsuit. The violation by attorneys is inexcusable. Herbert v. Monterey Financial Services, Inc., 863 F. Supp. 76, 79 (D. Conn. 1994); Kuhn v. Account Control Technology, Inc., 865 F. Supp. 1443 (D. Nev. 1994); Harvey v. United Adjusters, Inc., 509 F. Supp. 1218 (D. Or. 1981) (letters to consumer after counsel had filed an FDCPA suit on consumers behalf). III. DEFENDANTS SOUGHT ILLEGAL AMOUNTS Defendants were collecting on alleged January 1996 checks to Wilson totaling $402.78. Their November 2001 demand letter sought payment of $1971.80 on the Wilson account.6 The letter at issue in this case sought $10,277.56 on behalf of Wilson, and warned that plaintiff may be subject to statutory penalties as determined by the court. . . . You may wish to settle this matter before we seek appropriate relief before a court of competent jurisdiction. In discovery, defendants admitted that the demand for the additional sum was actually based on some two dozen checks written to several different stores in 1996. They did not disclose this fact in their letter to plaintiff. Defendants also admitted that they had already included, not only the statutory penalties, but a $25 charge for each check. The Service Fee is limited by Connecticut statute to up to $20, and applies only to checks written after the 1997 effective date of 52-565a(i). Defendants did not disclose the inclusion of these improper amounts. On the face of the February 2003 letter at issue in this case (unlike the face of the November 2001 letter), defendants knew that the penalties could be imposed only as determined by the court. The lawyer defendants arrogated to themselves the penalty and the excessive check charges but concealed their illegal overreaching from the plaintiff. The FDCPA prohibits both misrepresenting the amount of the debt (1692e) and the attempt to collect any amount not allowed by law (1692f(1)). Defendants violated the FDCPA by knowingly seeking a large multiple of any possible underlying debt. Duffy v. Landberg, 215 F.3d 871 (8th Cir 2000); Kojetin v. CU Recovery, Inc., 212 F.3d 1318 (8th Cir. 2000) (per curiam); Picht v. Jon R. Hawks, Ltd., 236 F.3d 446 (8th Cir. 2001). Withholding significant information is a deceptive practice. Ingham v. Eastern Air Lines, Inc., 373 F.2d 227, 239 (2d Cir. 1967); Bailey Employment System, Inc. v. Hahn, 545 F. Supp. 62, 67 (D. Conn. 1982), affd, 723 F.2d 895 (2d Cir. 1983). Compare Emery v. American General Finance, Inc., 134 F.3d 1321, 1323 (7th Cir. 1998) (misleading omission can be fraud). IV DEFENDANTS THREATENED TO SUE ON A TIME BARRED DEBT Defendants were collecting on alleged January 1996 NSF checks. The letter at issue in this case warned that plaintiff may wish to settle this matter before we seek appropriate relief before a court of competent jurisdiction. At its longest, the statute of limitations was the
Judge Kravitz has before him a motion for summary judgment as to the November, 2001 collection letter, including the issue discussed in this section: whether defendants demand for unlawful check and penalty charges violates the FDCPA. Goins v. JBC & Associates, P.C., Civil No. 3:02CV 1069 (MRK).
6

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contract statute, six years. The letter was sent seven years after the date of the checks. Defendants themselves could not bring civil proceedings, since they did not own the account and had no standing. We cannot reserve any right we do not have. Rosa v. Gaynor, 784 F. Supp. 1, 5 (D. Conn. 1989) (the only possible construction of we is the defendant and others); Herbert v. Monterey Financial Services, Inc., 863 F. Supp. 76, 80 (1994) (lack of authority to sue). While many cases conclude that one can try to collect on a time-barred debt if suit is not threatened, all authorities agree that mentioning suit on a time-barred debt violates the FDCPA. E.g., Freyermuth v. Credit Bureau Serv. Inc., 248 F.3d 767 (8th 2001) ([I]n the absence of a threat of litigation or actual litigation, no violation of the FDCPA has occurred when a debt collector attempts to collect on a potentially time-barred debt that is otherwise valid). As lawyers, defendants were charged with knowledge that their mention of litigation on a time barred debt was unlawful. One could justifiably conclude that their threat was intentional; after all, they drafted the letter. But this conclusion is forcefully confirmed by defendants own collection manual, which instructs their collectors as follows in the Talk Off: Tell the debtor you are calling from the Law Offices of JBC; we will immediately recommend disposition by a court of competent jurisdiction; this case will be immediately recommended to the attorney; partial payment will not prevent action in the appropriate court; frequent references to the attorney; and, if the debtor insists on speaking with the attorney I will be happy to, Sir/Madam, but please be aware that you will be responsible for all attorney fees if I transfer you to the attorney. V. DEFENDANTS VIOLATED STATE LAW Connecticuts Consumer Collections Agency Act and Regulations parallel the FDCPA. Reg. Conn. State Agencies 36a-809-3(f), (g). By violating these parallel state laws, defendants have violated CUTPA, Conn. Gen. Stat. 42-110b. Even if the Banking Department had not already determined by regulation that the practices were unfair or deceptive, a violation of a federal law is a per se violation of CUTPA (unfair or deceptive practices): Dial Corp. v. Manghnani Inv. Corp., 659 F. Supp. 1230, 1238-39 (D. Conn. 1987); Chauvin Intern. Ltd. v. Goldwitz, 927 F. Supp. 40, 49 & n.22 (D. Conn. 1996); Pfizer, Inc. v. Miles, Inc., 868 F. Supp. 437, 442 (D. Conn. 1994); Nabisco Brands, Inc. v. Kaye, 760 F. Supp. 25, 29 (D. Conn. 1991); Zoological and Ecological Research Found., Inc. v. Crabtree-Haas Imports, Inc., 7 CSCR 1144, 1145 (Oct. 19, 1992) (Katz, J.) Under CUTPA, there is no need to allege or prove any amount of an ascertainable loss. Hinchliffe v. American Motors Corp., 184 Conn. 607, 612-14, 440 A.2d 810 (1981). Whenever a consumer has received something other than what he bargained for, he has suffered a loss of money or property. Id. at 614. Adoption of the defendants view, that ascertainable loss is equivalent to actual damages, would eviscerate the private remedy provided by CUTPA. Id. at 616. The private loss indeed may be so small that the common law likely would reject it as grounds for relief, yet it will support an action under the statute. Weigel v. Ron Tonkin Chevrolet Co., 690 P.2d 488, 494 (Or. 1984) (citing Hinchliffe). Ascertainable loss does not necessitate a monetary payment. Aurigemma v. Arco Petroleum Products Co., 734 F. Supp. 1025, 1028 (D. Conn. 1990) (court refuses to address ascertainable loss because CUTPA does not require a plaintiff to prove a specific amount of actual damages to make out a prima facie case).

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Ascertainable loss is a term of art which entitles a plaintiff to bring an action. Once an action is brought, the plaintiff may seek actual damages, or if there are no actual damages equitable relief. Section 42-110g provides:
(a) Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42110b, may bring an action . . . to recover actual damages. . . . The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper. .... (d) In any action brought by a person [the court may award attorneys fees]. . . . In any action brought under this section, the court may, in its discretion, order, in addition to damages or in lieu of damages, injunctive or other equitable relief.

Being accused of owing a debt which one does not owe is ascertainable loss. Cox v. Sears, Roebuck & Co., 647 A.2d 454, 464 (N.J. 1994); Sorge v. Transworld Systems, Inc., Civil No. 3:94CV71 (JBA) (D. Conn. Sept. 19, 1996); Rizeck v. Connecticut Coast Fitness Centers Inc., 7 Conn. Ops. 469, 471 (Apr. 30, 2001) (rejecting the need to prove actual damages). It is enough if the consumer received something different from what had been bargained for. [citing Hinchliffe v. American Motors Corp., 184 Conn. 607, 612 (1981)]. Depriving a consumer of information required to be provided by law, or giving a consumer deceptive or misleading information causes ascertainable loss. Denino v. Valenti, 1993 Conn. Super. LEXIS 2686, 1991 CaseBase 8193 (1993). Collecting a debt through deception or unfair means also causes ascertainable loss. Halloran v. Spillanes Servicenter, Inc., 41 Conn. Supp., 587 A.2d 176, 181 (1990). Plaintiff has ascertainable loss when she got a letter that violated state and federal laws. She has a cause of action, even if she recovers only $1.00 in nominal damages. Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 499 (1995). Her monetary loss, to be ascertainable, may be as little as a 33 stamp, a toll call, or gas or parking to visit an attorney. Wiginton v. Pacific Credit Corp., 634 P.2d 111 (Hawaii 1981); Shubach v. Household Finance Corp., 376 N.E.2d 140, 141 (Mass. 1979) (toll calls and travel to meet with counsel). St. Paul Fire & Marine Ins. Co. v. Updegrave, 656 P.2d 1130, 1134 (Wash. Ct. App. 1983) (consumers damages include the consumers inconvenience, financial considerations such as loss of time in helping prepare the case). Even absent actual damages, plaintiff is entitled to the injunctive and punitive relief she seeks. Plaintiff bases her claim for punitive damages on the fact that defendants, attorneys and a law firm, have intentionally persisted for many years in collecting in Connecticut without a collection agency license (despite representing that they are licensed in every state); sent the plaintiff a form letter which seriously misrepresented Connecticut law and the consequences of writing a dishonored check; intentionally abused their status as attorneys to create (unfounded) fear of civil litigation in the recipients of the form letter; sent their intimidating attorney form letter without so much as receiving or reviewing any check or the creditors practices as a basis for forming an opinion about how to manage plaintiffs case; and routinelybut secretly imposed charges not permitted by law in their form letters. No attorney should be involved in sending such deceptive form letters to consumers. Any lawyer familiar with the FDCPA, as these defendants are required to be, knows that such tactics have been held to violate the FDCPA since

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at least 1988. The law cannot be so interpreted as to be helpless to deter their longstanding and persistent abuses. CONCLUSION There are additional violations, but plaintiff has shown sufficiently numerous and serious violations to warrant an award of the maximum statutory damages by the court and the submission of the amount of punitive damages to the jury.

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