Appeal from the United States District Court
for the District of Montana
Carolyn S. Ostby, Magistrate Judge, Presiding
Argued and Submitted
July 29, 2010—Billings, Montana
Filed March 4, 2011
Before: Sandra Day O’Connor, Associate Justice,*
Sidney R. Thomas and William A. Fletcher, Circuit Judges.
Opinion by Judge Thomas
*
OPINION
THOMAS, Circuit Judge:
Debt collection law firm Johnson, Rodenburg & Lauinger
(“JRL” or “the law firm”) appeals from the entry of summary
judgment against it under the federal Fair Debt Collection
Practices Act (“FDCPA”), and from a subsequent jury verdict
awarding damages under the FDCPA, the Montana Unfair
Trade Practices and Consumer Protection Act (“MCPA”), and
state torts of malicious prosecution and abuse of process. We
have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.
I would review a case that has surfaced in Montana Federal District Court (Great Falls Div), Cole v. Portfolio Recovery Associates”, docket no CV-08-036-GF. This is a case here the debt collector/debt buyer “Portfolio” filed suit against Cole on a credit card debt, and inserted an “Affidavit” of one Martha Kunkle in a Motion for Summary Judgment in an effort to steamroll the Case to Judgment. The Affidavit was dated May 24, 2007.
Unfortunately for both the debt collector [Portfolio] AND their collection attorneys, Cole did some checking, found other examples of the signature, and Motioned the State Court that the affidavit was dubious. The State Court Judge ORDERED that Portfolio produce Kunkle, whose signature was notarized in Texas [see attached pdf], to appear in Montana for deposition. Kunkle never showed up. Turns out Martha Kunkle was dead, having died 12 years earlier, in 1995. (Sanctions are pending in the State Court case).
Cole by counsel filed a FDCPA suit in USDC [above cite], in which Portfolio in essence denied they were bad boys, and as an affirmative defense claimed that Cole had not done act to “mitigate her damages.” How a consumer mitigates damages when confronted with the Affidavit of a dead person is not explained.
In the USDC Final Order and Judgment, a class-action settlement was approved by the Court roughly $178,000 was paid to identified members of the Classes [3 classes of claimants] and $212,500 in attorneys’ fees, costs and expenses.
An expensive affidavit of a dead person.
While these are not directly “mortgage debt” controversies, the affidavit was furnished by agents of our friends at WASHINGTON MUTUAL BANK, from which the moral: do not assume any signature of any “affidavit” [or anything else]. the affiant may well have been dead for over a decade!
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