RE: Pro Se Settlement Out Of Court Offer $150k

Let me know if your willing to settle out of court before I submit this grievance report

My name is Lance Thomas Davidson; I am a current gulf war-era veteran and I live in Bali, Indonesia. On or about 21JULY, I contacted Gary Nitzkin with the prospects of allocating his legal services for the purposes of collecting a debt that is owed to me.
Gary Nitzkin operates under the assumed name of Gary Nitzkin & Associates; his official Michigan corporate name is Gary D. Nitzkin P.C. Also, his registered corporate identification number is: 404325. Gary Nitzkin’s office is located at: 22142 West Nine Mile Road, Southfield Michigan 48034

Indonesia does not have a good reputation for international trade. It is in many ways it is stereo-typed as a country that is prevalent with fraud and white collar crime. Although the reputation may be somewhat deserved, it should not serve as the basis in which a single person is PROFILED. Just as racial profiling is unethical and violates ones civil rights, so is discriminating against a person based on which country they live. I am an American citizen, one by birth, whose American rights and freedoms are protected by the U.S. Constitution and the Bill of Rights. John Fitzgerald Kennedy once said, “The rights of every man are diminished when the rights of one man are threatened”. Holding a license from The State Bar of Michigan to practice law is a privilege, and one that should not be taken lightly sanctity of the law always on one’s mind . Gary D. Nitzkin did not perform his duties as a licensed attorney, within the State of Michigan in an ethical manner…
By accusing me of fraud, performing private investigations on me, then having that private (unsecured) data sent to his Blackberry hand phone, he (personally and professionally) violated my rights to seek and secure proper legal representation. What’s more; he shared his opinions about me with others including contacting the F.B.I. for which there was no evidence of wrongdoing… He did everything in his unethical powers to destroy me, defame my reputation, and my rights to seek and secure proper legal representation.
By contacting others and speaking about the details of my claim in a defaming tone with the F.B.I and contacting my debtor’s attorney’s without a signed retainer contract; I now cannot find a collection attorney in Southfield, Michigan to take my case; furthermore, my chances to submit evidence, secure the testimony of others, and to hire a reputable attorney for the purposes of having my case presented in court and tried in an unbiased setting before a judge and jury--- Are substantially damaged – if not completely destroyed. By his imprudent actions, he singly, side-stepped the complete due processes of law by accusing me of crime that I did not commit. Once more, he substantially damaged my ability to seek and obtain proper legal representation; thus disgracing the State Bar Of Michigan, The U.S. Constitution, The Bill of Rights, and my beloved - United States of America.

By showing a disgust and lack of reverence for the office in which he was appointed to by The State Bar of Michigan, I humbly request that he be disbarred with no chances of practicing law again within the State of Michigan.

the Civil Rights Act of 1866, which was originally declared unconstitutional but then upheld when reenacted in 1870, after the ratification of the Fourteenth Amendment. All citizens, the act declared, "have the right to make and enforce contracts, to sue, be parties and give evidence; to inherit, purchase, lease, sell, hold, and convey real property, and to full and equal benefit of all laws and proceedings for the security of person and property." All governments then, state and federal, are required to protect the rights of person, property, and contract, without interfering with rights of inheritance, property, judicial action, etc.
Complementing civil rights is the conception of civil law. Civil actions consist of legal actions by private citizens against private citizens: Civil wrongs are breaches of contract or torts, wrongs specified in common law and case law but not, originally, by statute law. Civil wrongs are remedied by monetary damages paid to the plaintiff. Typically, the criterion of judgment in civil cases is less stringent than in criminal cases, that a verdict is to be based on the "preponderance of the evidence" rather than "beyond a reasonable doubt."

He may be a legitimate psycho. I don't know, but he is out there.

YES, MY OFFICE USES SOCIAL MEDIA TO TRACK DOWN DEBTORS. Yeah, I said it. What are you going to do about, NPR? I tell you, my dear readers, what they did do. NPR did the story and painted me as something beyond callous hard hearted. They characterized me as a violator of the Fair Debt Collection Practices Act ("FDCPA"). Well guess what, NPR, the joke is on you because I am an expert under the FDCPA and I am right in what I am doing. I may be a heartless debt collector (or "bottom feeder" as some of you like to say...but sticks and stones, right?), but I am good at my job and I do it well.

Name: Jennifer Lunyang Email: aaxtos@yahoo.com Phone: +81-3-3423-8001 Interested In: Dear Counsel,

I am contacting your firm in regards to my divorce settlement with my ex husband (Frank McCain) who resides in your country. I am currently relocated to Japan because of financial problems which I encountered after he abandoned us in Europe. We had an out of court agreement for him to pay $380,000.00 plus legal fees. He has only paid me $24,000 since which was not enough to settle the bills,legal fees and the childrens school fees .I am hereby seeking your firm to represent me in collecting the balance from him.

He has agreed already to pay me the balance but it is my belief that a Law firm like yours is needed to help me collect the payment faster from my ex-husband or litigate this matter if he fails to pay as promised. The payment has been overdue for over 3months.

I await your urgent response and also let me know what your rates are as well as your agreement /retainer form.

Sincerely,

Jennifer Lunyang

I highly doubt that there is a Jennifer Lunyang in Japan. Her account is at yahoo.com. I would suspect that if she were stuck in Japan, that she would have a more Japanese sounding ISP hosting her free email account.

I dont know for a fact as to how the scam works, but I can easily see her having me send a demand letter to her "ex- spouse" and magically, i get a check for a huge amount of money. Presciently, she notifies me that she learns that her ex has sent me the money and then tells me a sob story about how she is destitute and needs her share as soon as possible and if wouldn't mind send it her ASAP. It would only be after I deposited the check and sent her the share, that I learned that the underlying check is bogus.

Attorneys - please be careful of this scan. its the newest flavor for getting hurt.

"Thus, .given the choice of language by Congress, the FDCPA should be interpreted to cover communications that convey, directly or indirectly, any information relating to a debt, and not just when the debt collector discloses specific information about the particular debt being collected.

The court's language in Foti would appear to taint any voicemail message left by a debt collector as a violation of the FDCPA. This may be, indeed an incredibly broad view of the word "communication: under the FDCPA and this court's opinion has no formal binding precedential value outside of 2nd Circuit...BUT....the law in this area is far from settled and the District Court in 2nd Circuit stepped up to the plate and rendered an opinion. Any other circuit that is presented with this same issue will undoubtedly review the Foti case and its well reasoned opinion in formulating its own holding. This case is one large strike against debt collectors leaving messages. In my opinion, I would not wait for strikes 2 and 3 before advising my consumer debt collector clients to NOT leave messages on debt collectors' phones.

My question is then, is why would any debt collector in his or her right mind ever leave a voicemail message for a debtor? I think the short answer is that no collector with some familiarity with Foti would ever leave a message for a debtor. Yes, I understand that the telephone is still the number one tool for collect debts without litigation. I also understand the value of auto dialers in debt collection agencies. What I don't understand is why a collector would leave a message for a call back today.

Here is my best advice to you Consumer Debt Collectors and Attorneys who collect consumer debt - DON'T LEAVE VOICEMAIL MESSAGES FOR YOUR DEBTORS. Its just not worth the risk of getting hit with an FDCPA action.

She also presented the court with two emails that purportedly came from Yaple that represented that he intended to file a lawsuit against her.

Mr. Yaple contends that he did not compose these communications. Rather, he states that a rogue collector at TK Financial had created mock letterhead and set up an email account. In any event, he is now in trouble whether he is culpable or not. Although he is a California attorney, he was to defend himself in federal court in Ohio as a defendant in a class action. The case has since been settled and dismissed. Missing from the court's docket was Mr. Yaple's third party complaint against TK Financial and the allegedly rogue collector. This glaring omission speaks to whether there was truly a rogue collector or whether Mr. Yaple was pimping out his letterhead.

During my speech, I informed the crowd how I had located a ghost debtor on Facebook. A ghost debtor is someone who is off the grid. He has no home address that I could find, no car registered in his name and no real estate. I could not find this guy until I found him on Facebook and then I was able to locate all sorts of information on him. Anyways, I sent this debtor a friend invitation which he accepted. Ms. Mattieson then asked me "Weren't you required to give him the mini-Miranda when you send your friend invitation on FB?" This requirement under the FDCPA is where you have to warn a debtor that your communication to him is from a debt collector.

Boy...she got me right there...on the spot...uh...uh....may be. She might have been right. But, as I thought about it through lunch, it occurred to me that no, I did not need to give this guy the mini-Miranda when I sent him a friend invitation through FB because my communication was not in connection with the collection of a debt.

After lunch, I saw Chiara in the parking lot. As some of you may know, I hold a first degree black belt in karate. I told Chiara that as long as we were in the parking lot....that I had an answer for her question. She was as gracious and friendly as could me as we discussed the pros and cons of the Fair Debt Collection Practices Act.

Kudos to Holzman Ritter and Corkery for hiring as an intelligent and astute attorney as Chiara Mattieson. Chiara, if you read this post, I want you to know that it is attorneys like you that make me proud to be part of our profession. You intellectually challenged me and by making me thinking through an answer, you made me that much of a better lawyer. Thank you.

I will be ready for yournquestions next time! :)

I have decided to form an division in my firm dedicated strictly to helping consumers; its called Michigan Consumer Credit Lawyers. The website is still under construction. When it is complete, I will let you know. I anticipate that it will be live in the next few weeks. This new website will contain several self help videos for consumers on issues from what to do when they get sued to how to handle an abusive debt collector. Take heart as we also republishing our Nitzkin and Associates website with many instructional videos too.

The MCCL blog is already up at www.micreditlawyerblog.com. On this new blog, I will talk only about issues that affect consumers who have been wronged by debt collectors, banks, credit reporting agencies and anyone else that would treat a consumer like crap. MCCL's website will be up shortly to coach consumers on what to do when they are faced down by their larger and financially better heeled opponents. We are here for them to even those odds.

We are still and will always be debt collection attorneys. However, we mostly represent businesses and do commercial debt collection and hence, we really have no conflict of interest. I, Gary Nitzkin, will continue to write this blog coaching debt collectors on how to avoid violating the FDCPA and the FCRA.

If you have any questions, please feel free to email me, Attorney Gary Nitzkin or call me, tool free at 877-293-2882.

a. Your client posited its consumer dispute with the credit reporting agency (and not just the creditor/furnisher directly). You or your client's failure to notify the credit reporting agency of your client's dispute is fatal to your FCRA claim. You see, under the statute, a credit reporting agency's duty to conduct a reasonable reinvestigation does not begin until it receives notice of the dispute. Notifying the furnisher of the dispute is insufficient to trigger any duty to conduct a reasonable reinvestigation by the credit reporting agency.

b. Be sure to plead that that the credit reporting agency notified the furnisher of your dispute. If you are uncertain as to whether this happened, look for facts that would support a good faith believe to allege that this happened "upon information and belief." Under the FCRA, a furnisher's duty to conduct its reinvestigation is not triggered until the credit reporting agency notifies it of your client's dispute. Some courts do not require this to be pled in the complaint, but yet, some courts do. For example, Judge Avern Cohen who sits in the United States District Court for the Eastern District of Michigan requires this allegation in FCRA complaints. I just finished reading an opinion in which he dismissed the Plaintiff's complaint for failing to allege that the credit reporting agency notified the furnisher. I have a world of respect for Judge Cohen and his opinions. I can safely say that he is an incredibly intelligent man and history will undoubtedly remember him as an excellent jurist. BUT......if you are going to file an FCRA complaint in the Eastern District of Michigan and your case is assigned to Judge Cohen, be sure that you follow my advice.

In this case, the debtors had challenged a proof of claim that had been filed by a debt buyer. When the debt buyer could not produce the original documents to support the claim, it withdrew its claim. The debtors were not happy with that result, alone. The debtors asked the court for sanctions against B-Line, the debt buyer for not adequately investigating its claim prior to filing it, pursuant to Bankruptcy Rule 9011(b). B-Line dodged a bullet in the trial court as the judge said that B-Line in fact did not adequately investigate its claim but did not award sanctions.

On appeal, the 6th Circuit court reversed the lower court and held that B-Line's pre-filing investigation was reasonable. The court found the fact that B-Line received a warranty as to the validity of claims it purchased, coupled with B-Line's cursory review of the claims, as persuasive that the claims that B-Line filed in the bankruptcy court, were filed in good faith and in compliance with its pre-filing obligations under Rule 9011(b). While the court did not find that these claims were, in fact valid, the court did find that having received such warranties from its seller, made B-Line's reliance upon the validity of these claims, reasonable and hence, its pre-filing investigation requirements were met in good faith.

Moral of the story to those filing claims on purchased debt in the bankruptcy court.- I am no fan of purchased debt. But if you are filing proofs of claims on these debts in bankruptcy court, be sure that the debt buyer's purchase agreement through which it bought these debts contains warranties that the claims are valid. Furthermore, be sure that your client has thoroughly vetted these claims for obvious anomalies such as incorrect social security numbers and bad addresses.

Query for you consumer lawyers: If this case had gone the other way and the 6th Circuit held that B-Line had violated its duties under Bankruptcy Rule 9011(b), do you think the debtors would be potential plaintiffs for a claim under Fair Debt Collection Practices Act?

The Sixth Circuit Court of Appeals dismissed the case by holding that the BFE defense applies to mistakes of law as well as mistakes of fact Jerman v Carlisle, 538 F.3d 469 (2008). The Sixth Circuit held that a plain reading of the FDPCA shows that the BFE defense does not exclude mistakes of law and so, neither should the court. This is a very interesting holding, indeed. Cases that have examined the BFE defense under the FDCPA, have mostly held that this defense applies only to errors of fact. The Sixth Circuit holding in Jerman was really breaking new ground with this holding.

So why did the United States Supreme Court accept this case for review? Ms. Jerman had turned her FDPCA lawsuit into a class action against the defendant law firm. If the defendant loses this case, it stands to pay a huge sum in attorneys’ fees plus class action damages of $500,000 or 1% of the law firm’s net worth, whichever is lesser. As I read the oral argument, it became apparent to me that at least one Justice had an agenda for protecting attorneys.

Three attorneys argued this case before the Supreme Court. Mr. Kevin Russell argued on behalf of Karen Jerman, the Plaintiff/Petitioner. Mr. William Jay argued on behalf of the Solicitor General, Department of Justice, supporting Ms. Jerman’s position. Finally Mr. George Coakley argued on behalf of the Defendant/Respondent law firm.

In my opinion, Justice Breyer’s pointed questions and comments indicated that he was interested in protecting lawyers. In my opinion, he seemed to be leaning towards affirming the Sixth Circuit. Unfortunately, I think that Mssrs. Russell and Jay had the better arguments before the court. I found Mr. Russell’s arguments quite persuasive when he pointed out that:

 The bona fide error defense speaks only to mistakes of fact and not to mistakes of law;
 Had Congress intended to include mistakes of law in the Bona Fide Error Defense, it would have expressly included such language in the statutue;
 Courts should not expand the Bona Fide Error Defense to include mistakes of law simply because it may result in an unfair consequence to the lawyer defendants;

Mr. Jay advanced an excellent argument against extending the BFE defense to include mistakes of law. He noted that several other statutes, including the Truth in Lending Act, a companion consumer credit statute, include a BFE Defense and none of the other statutes or the cases construing them have included mistakes of law as part of those BFE defenses.

As a collection attorney, I was rooting for Mr. Coakley. My colleagues and I are depending upon him to represent us and convince the Supreme Court that the Sixth Circuit decision in Jerman was correct. Unfortunately, I did not find Mr. Coakley’s arguments nearly as persuasive as Mssrs Russell’s or Mr. Jay’s.

Mr. Coakley began his argument by looking at a plain reading of the statute and then moved quickly into conceptual analogies that were more heady than persuasive. He then argued that some courts had construed the TILA’s BFE defense to include mistakes of law as well as fact. He then argued that Congress amended the TILA to definitively exclude mistakes of law from the TILA’s BFE defense. Although Mr. Coakley properly argued that this indicated that Congress intended to treat the FDPCA and the TILA as different statutes, this argument proved too much and subsequently, was Mr. Coakley’s undoing.

Justice Scalia noted that there were no appellate decisions construing the TILA BFE defense to include mistakes of law prior to the 1980 Congressional amendment to that statute. Justice Scalia then accused Mr. Coakley of misleading the court by implying that Congress had amended the TILA in light of court decisions construing that statute’s BFE defense as including mistakes of law. Any litigator knows that his ability to persuade a court is directly tied to his credibility. If the judge does not trust you, the court will put little credence in what you have to say. Mr. Coakley, in my opinion, shot himself in the foot by advancing the argument that Congress amended TILA’s BFE defense due to court decisions construing that defense as including mistakes of law.

I will let you know when the court rules on this case.

The FDCPA contains a defense to debt collectors who get sued for violation of this statute. The "Bona Fide Error" Defense ("BFE Defense") as it is commonly called, states:

A debt collector may not be held liable in any action brought under this subchapter if the debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error."

There is a major issue with the Bona Fide Error Defense upon which the circuit courts disagree. The major question with the BFE Defense is whether it applies to mistakes of law as well as mistakes of fact (clerical mistakes). Not only are the circuits in disagreement on this issue, but we have competing and contrary decisions from within our circuit (6th Circuit) alone. The United States Supreme Court in Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich, LPA is going to take up the issue. This is going to be a real nail biter for every debt collector (and the defendant law firm.).

In Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich, LPA, ("Carlisle"), the defendant law firm was hired by Countrywide Bank to foreclose on Ms. Jerman's mortgage. In connection with its lawsuit to foreclose on Jerman's mortgage, Carlisle attached a Notice Under the Fair Debt Collection Practices Act which provided, among other things, that:

the debt described herein will be assumed to be valid by the creditor’s law firm [Carlisle] unless the debtor(s) . . . within thirty (30) days after receipt of this notice, dispute, in writing, the validity of the debt or some portion thereof.

The FDCPA does NOT require a consumer to dispute a debt in writing. The statute does require a consumer who wants validation of the debt, to make that demand in writing, but there is no like requirement for disputing the debt. Sounds a lot like splitting hairs, huh? Nevertheless, this fearsome fight has a lot at stake as the BFE Defense is substantial. Frequently, it is the only defense that a debt collector has to a FDCPA lawsuit. Hence, the scope of this defense will have a major impact on the outcomes of future cases.

Ms. Jerman (and her attorneys') have asked the District Court for class action certification of this lawsuit. Carlisle has argued, persuasively, that it is entitled to the BFE Defense because such defense applies not only to mistakes of fact, but mistakes of law. Again, whether this is true or not is currently up for grabs. There are cases around the country that hold that the BFE Defense only applies to clerical mistakes. In fact, this view was starting to gain momentum amongst the circuits and is well on its way to becoming the majority view.

There are, however, other cases, that state that the BFE Defense applies only to clerical mistakes. These cases typically rely upon the BFE Defense cited in the Truth in Lending Law, a companion Consumer Protection Statute to the FDCPA. The BFE Defense in TILA, indisputably applies only to clerical sorts of mistakes.

The Supreme Court has docketed a hearing on Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich, LPA for January 13, 2010. I will keep you, my good reader, posted as to what happens next!

American Corrective Counseling Services is a collection agency based in California. It was involved in helping Pennsylvania merchants recoup funds on bad checks. Unfortunately, it got a little carried away. It, allegedly, sent letters to debtors on letterhead that was purportedly from district attorneys. These letters threatened the debtors with criminal action if they failed to not only pay the bad check, but if they failed to pay a $170 fee for an “accountability class.” Indeed, according to a report by the Associated Press, one elderly woman who wrote a check for $27 to Kmart, which bounced, was told she would have to pay fees of $72 to clear the matter up, "plus another $170 for the accountability class." The case is entitled Del Campo v American Corrective Counseling, in the 9th Circuit. The violations of the Fair Debt Collection Practices Act, in this case, are enoromous.

A class action lawsuit was filed against American Corrective Counseling Services. It settled the case for $2.55 million.

This morning, I received the following email from Mr. Cook:

Dear Gary, I recieved (sic) an email this morning from Mr. Liguo regarding an email that was sent to him stateing (sic) that the payment has been sent to your office in the full amount that was requested. According to the agreement please deduct your precentage (sic) , my client will be sending me the account information for the transfer of the balance. I will then be sending you the account information for the balance transfer.

Sincerely,

David Cook
481 University Avenue, Suite 510
Toronto, Ontario M5G 2E9
Phone: (647) 831 6954
Fax: (416) 800 9908
Email: attorneydavidcook@aol.es
www.criminalbusinesslawyers.com

Magically, I also received a check from the alleged debtor, Ideal Fabricators, for $550,700 this morning, drawn on a bank called California Bank & Trust. The package arrives from an expediter named "Purolator." The check contains no address for Ideal Fabricators. The package has a return address of Ideal Fabricators, Inc. 481 University Ave, Mississauga, Ontario, M5G2K1. The package contains a cove letter from Ideal Fabricators (no address or telephone number on the letterhead), apologizing for the late payment, informing me that they had a bad year but are now on the road to prosperity. They wish me a good year, too. Am I going to deposit this check?? NOOOOOOOOO!!!!!!!!!

Why not?

This is a scam. I called Ideal Fabricators. The have never head of me, Mr. Cook or the alleged creditor in this case. They never wrote such a check. OK, I think, its time to do my civic duty and get the authorities involved.

I called the F.B.I. this morning and explained that I was the target of this scam, but did not get taken. I was 1 minute into my story when the young lady told me that this is a Secret Service type of case. She gave me the phone number of that agency and I called.

The Secret Service told me that they could not do anything about this case because the alleged bad guy was in Canada. They referred me on to the Federal Trade Commission. The FTC has no more authority to after these bad guys than our heavy hitters such as the F.B.I. or the Secret Service.

Nevertheless, I tried to call the FTC, but could not get through. OK, I tried to do my duty, but no one was interested in helping me. So here I am now, telling you about this scam so I can help you.

I know that in the next few days, I am going to get a call or email from David Cook asking telling me that his client has an immediate financial need and if I would not mind wire transferring the proceeds to a certain bank for him. This is how the scam works. In ordinary circumstances, I go on line and verify whether this check has cleared or not. I will notice that it has cleared and then wire transfer this guy several hundreds of thousands of dollars. When the check comes back as no good, the bank is going to ask me to reimburse it. By not depositing this check, I am going to save a lot of nice people, some large head aches.

LAWYERS - Moral of the Story -

1. Be very careful with whom you do business, especially over the internet. Everyone has a website today. Look your client or referring attorney's website to see if it makes sense. Mr. Cook claims to be an expert in most areas of the law. Pretty impressive, huh? That alone was enough to put me on guard regarding this guy. The bad guy may have gone to great lengths to prove that he is who he purports to be, except for getting an education. "David Cook" had a website to show that he was an attorney, albeit fraught with spelling and grammatical errors.

2. Verify that the debtor actually owes money. Pick up a telephone and call the debtor that you are pursuing. In this case, the "debtor" made a $550,000 check payable to me, without even knowing who I am. I know that the holidays bring about good cheer, but even that has its limits.

3. Stay alert to little things that just don't make sense. For instance, in this case, the client (whom I had never met), purportedly had a its debtor make a check out to me for $500,000 and told me to take my fee of 1/3 from it? Why? I have not even written a demand letter. I believe in the kindness of strangers but, again, this too, has its limits.

4. The scariest thought of this process, besides potentially getting stuck for money that you paid out to con artists, is that you do not have law enforcement agencies to help you. You are on your own. Use your wits, your intelligence and ask as many questions as you need to satisfy yourself that everyone is who they purport to be.