Alabamians of all political stripes should be thankful that former U.S. Rep. Artur Davis has left our state for greener pastures in Virginia. Davis was one of the most disgraceful politicians in Alabama history--and that is saying something. He was a lousy Democrat, getting waxed in the 2010 gubernatorial primary; he probably will be an equally bad Republican now that he has switched parties.
Davis, unfortunately, left behind one nasty "gift" that is likely to keep giving for many years. And that does not bode well for the future of justice in Alabama.
According to published reports, Davis pushed for the appointment of Abdul Kallon as a U.S. judge in the Northern District of Alabama. Why did Davis support Kallon, who had extraordinarily thin credentials? Well, Davis was eyeing a run at the governor's mansion and apparently wanted to gain favor with our state's business elites, the folks who belong to the hideously corrupt Business Council of Alabama. What better way to do it than by anointing a lawyer from the state's premier pro-corporate law firm, Birmingham-based Bradley Arant?
President Barack Obama went along with Davis' wishes and nominated Kallon on July 31, 2009. The U.S. Senate confirmed the appointment about four months later, meaning the 43-year-old Kallon now has a lifetime appointment for which he is not remotely qualified.
All of this is particularly timely now. As former Alabama Governor Don Siegelman is set to be resentenced tomorrow--for convictions on "crimes" that do not exist under the law--the nation should be reminded that this is happening on Obama's watch. The unwillingness to hold Bush-era thugs accountable for clearly political prosecutions, such as the Siegelman case and the Paul Minor case in Mississippi, stands as Obama's No. 1 failure as president.
But his appointment of Abdul Kallon to the federal bench stands as another major failure. If anything good can be said about Kallon's performance so far, it is this: He is consistent--consistently bad.
That assessment is not just a guess on my part. I've had two cases before Kallon, and he royally botched both of them, making several dozen rulings that were not supported by fact or law. My impression is that Kallon is not stupid or incompetent; he simply is a toady for corporate and institutional interests. Any consumer or regular citizen who has been wronged is not likely to find relief by going before Kallon.
I already have written extensively about my experiences with the corrupt machinations of U.S. District Judge William M. Acker Jr., an 84-year-old Republican appointee from the Reagan era. As a black Democratic appointee who is roughly half Acker's age, Kallon would seem to be cut from a different sort of cloth. But when it comes to administering "justice," the two men are ideological twins, cutting favors for business elites while treating the rule of law like a plaything.
In the interest of time and space, I can't possibly go into all the ways Kallon ruled unlawfully in my cases--and they both also involved Mrs. Schnauzer, by the way. But I will hit a few "highlights," starting with our lawsuit against various outfits that were trying to collect a debt I allegedly owed to American Express.
We had four different judges over the course of that case, and by the time it landed with Kallon, I don't think he had a clue what was going on. Even if he did, his actions made it clear he had a predetermined outcome in mind--and nothing was going to change that.
I've written at length about our interactions with Birmingham law firm Ingram & Associates, which is headed by attorney Angie Ingram, and Pennsylvania-based debt-collection firm NCO, which was purchased by JPMorgan Chase not long before we started receiving calls from collectors. I tape recorded several conversations with Ingram representatives, and that yielded indisputable evidence that they had repeatedly violated the Fair Debt Collections Practices Act (FDCPA).
We also had clear evidence that NCO had placed the alleged debt with Ingram, meaning the two had an agency relationship, and NCO was vicariously liable for Ingram's misconduct; even Kallon admitted to that. But did our evidence get anywhere with a judge who apparently wants to make sure the world is safe for debt collectors to behave as they please? No, it did not.
How exactly did Kallon screw us? Let's focus on a handful of central issues:
* Discovery Denied--A favorite tactic for corrupt judges is to deny discovery for plaintiffs, either totally or in part, and grant summary judgment prematurely for corporate defendants. That's exactly what happened in our debt-collection case, and Kallon did not pull it off by himself. He had help from our own lawyers, Darrell Cartwright and Allan Armstrong, who stabbed us right between the shoulder blades repeatedly. (More on the shysters Cartwright and Armstrong in upcoming posts.)
As bad as our lawyers were, they did make it clear to the court in our response to summary judgment that the parties had ongoing discovery disputes. And that's all they had to do under Eleventh Circuit precedent to ensure that Kallon did not dispose of the case based on an incomplete record. But Kallon moved forward anyway.
Cartwright and Armstrong should have filed a motion under Rule 56(d) of the Federal Rules of Civil Procedure (FRCP), asking for a continuance because the opposing parties were stonewalling on discovery. They did not do that, but they did include the following footnote in our summary judgment response:
Counsel for the parties have ongoing discovery disputes which are, through this date, still attempting to resolve without assistance of the Court. Although counsel for the Shulers does not believe it is necessary to demonstrate the existence of material fact questions in this matter should the Court deem it necessary, the Shulers would request an opportunity to supplement this Opposition with additional material being sought through the discovery process. The extent of acting together, direction, and control is yet to be completely uncovered. Both co-Defendants admit the relationship, and acknowledge that the relationship is documented in written agreements; however, both have refused to provide said agreements to the Shulers, despite formal and informal requests to so provide within and without the discovery process.
That was much weaker than what our "dynamic duo" should have filed, but it was sufficient under the law to halt the summary-judgment process and force the defendants to reply to our discovery requests. Controlling law in the Eleventh Circuit is found in a case styled Snook v. Trust Co. of Georgia Bank of Savannah, N.A., 859 F. 2d 865 (11th Circuit, 1988). It states in part:
“This court has often held that summary judgment should not be granted until the party opposing the motion has had an adequate opportunity for discovery. . . . The party opposing a motion for summary judgment has a right to challenge the affidavits and other factual materials submitted in support of the motion by conducting sufficient discovery so as to enable him to determine whether he can furnish opposing affidavits. . . . Generally, summary judgment is inappropriate when the party opposing the motion has been unable to obtain responses to his discovery requests.”
When the federal rules were revised in 2010, the old Rule 56(f) became Rule 56(d). The rule had required that a party seeking protection from premature summary judgment file an affidavit stating that discovery was outstanding. But under Snook, that has not been required in the Eleventh Circuit:
In this Circuit, a party opposing a motion for summary judgment need not file an affidavit pursuant to Rule 56(f) of the Federal Rules of Civil Procedure in order to invoke the protection of that Rule. In Littlejohn, the court "[o]ut of an abundance of caution and to prevent a possible injustice," held that an affidavit was not required to invoke the protection of Rule 56(f). 483 F.2d at 1146. The court concluded that "the written representation by [plaintiff's] lawyer, an officer of the court, is in the spirit of Rule 56(f) under the circumstances. Form is not to be exalted over fair procedures.
As bad as our lawyers were, they did the bare minimum to invoke the rule's protection and ensure that we did not get railroaded into premature summary judgment. But Kallon railroaded us anyway. He clearly did not want to see the debt collectors forced to turn over documents that would have proved how they routinely violate the law--not only in our case, but against thousands of other consumers.
* Abuse Allowed--Section 1692d(2) of the FDCPA states that "a debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse" the hearer.
Tape-recorded evidence showed that Ingram representative Jann Blalock referred to me "playing any schemes." When I stated that a lawyer, including Angie Ingram, has a duty to report misconduct involving a member of the bar, Blalock said, "Have you pulled this with every lawyer that represented someone that you owed a debt to?"
Another Ingram rep, Tracy Mize, referred to me conducting "a witch hunt."
But that only touches on the abuse and harassment we experienced from Ingram. Under Section 1692(d), a debt collector may not communicate with any third party about an alleged debt other than to seek location information. It's undisputed that Mrs. Schnauzer was not a party to the alleged debt, and yet Tracy Mize spent roughly an hour talking to my wife, asking numerous questions about our personal finances, and winding up with 14 pages of notes.
Here are Jann Blalock's words from a phone conversation with me:
I probably have 14 pages of notes on your account right now at this time. Okay, the first time that I got involved with it was last night when your wife went absolutely hysterical.
Why would Mrs. Schnauzer go "absolutely hysterical"? Was it because Tracy Mize told her that Ingram was going to cause her house to be "sold on the courthouse steps"--over an alleged debt that did not involve her?
Gee, I can't imagine why that would cause anyone to be upset.
Aside from the offensive language that was aimed at me, the alleged debtor, you have collectors causing a third party to--in their own words--become "absolutely hysterical." And Kallon claims this does not violate Section 1692(d)?
* Courthouse Steps Invoked--Speaking of "courthouse steps," that seems to be a favorite tactic of the Ingram firm. I suspect it's a favorite of many debt collectors. They hit you with images that your home--not the rights to some of it, but the whole shebang--is going to be sold in a public, humiliating fashion. In our case, Ingram reps told my wife that her entire home, which she jointly owns, was going to be sold over an alleged debt that did not involve her. I've yet to see anyone cite law that says such a step can be taken in order to satisfy a credit-card debt allegedly involving one owner of a jointly-owned home.
Section 1692e(4) of the FDCPA prohibits "the threat to take any action that cannot be legally taken or that is not intended to be taken." But Ingram used that unlawful scare tactic multiple times, and we have proof. Here is a brief segment of one conversation:
Roger Shuler: [Ms. Mize told my wife that] our house is going to be auctioned off on the courthouse steps. Do you think that's not . . .
Jann Blalock: We didn't say the house, we said the deed to the house, and that's what happens with any judgment, Mr. Shuler.
Notice they are threatening to sell the deed to our house--the entire house--over an alleged credit-card debt totaling in the range of $10,000 to $15,000 (including a lot of unexplained fees). Never mind my wife's interest in the house over a legal claim that did not involve her. And never mind that they could not talk to her, a third party, other than to ask where I was located.
I try not to use terms like "outrage" loosely, but that's the best word I can think of to describe Ingram's actions in our case. And it also describes Judge Abdul Kallon's unlawful handling of the case.
Much more is coming, both about Ingram and Kallon.
Meanwhile, let's check out an appellate document that provides a pretty good summary of issues that came up in our case--and undoubtedly come up in tens of thousands of debt-collection cases around the country. (By the time this document was due, we had given up on lawyers and decided to represent ourselves.)
Ingram--Appellate Reply Brief