Friday, October 30, 2009

What Are Debt Collectors Trying to Hide?

The key date in my wife's recent unlawful termination at Birmingham-based Infinity Property and Casualty Corporation appears to be September 14.

That's roughly the date when it became clear that we intended to move forward with discovery in our lawsuit against NCO Financial Services and Ingram & Associates LLC regarding their collection activities on a debt allegedly owed to American Express.

We are going to examine some rather dramatic actions that took place just before and after September 14. That should provide some insight into why my wife testified under oath in a deposition on Monday that she believes her unlawful termination was driven by individuals with connections to the debt-collection and credit-card industries.

Before we move forward, here's one other date to remember in all of this: October 30. That's today, and it's the deadline for completing discovery in our lawsuit.

Our guess is that the defendants, particularly NCO Financial Services, very much had that date in mind as the middle of September was approaching.

Counsel for NCO had sent us notification, while we were representing ourselves, that they intended to review our medical records as part of the discovery process. This was no surprise because our lawsuit claimed emotional distress and other health-related damages.

By the time the issue came up again in September, we were represented by counsel. So we figured NCO would go through the proper channel to get the records they were entitled to see.

But that is not what counsel for NCO did. Instead, they sent our attorneys a letter, with a railing tone, demanding that we sign releases that would give them unfettered access to our medical records. They also stated that they would file a motion to compel if this task was not completed in 25 hours.

Our attorneys responded with a motion stating that NCO was not entitled under federal law to blanket access to our medical records, and the deadline was arbitrary and improper. The court issued a protective order, stating that NCO could gain access only to the records to which it was entitled.

Since all of this took place, we have not been asked to sign a release for our medical records. It appears NCO never was interested in our medical records in the first place. It just wanted to intimidate us--and it failed.

Here is probably the key sentence in our motion for the protective order:

Counsel took this action after being advised that plaintiffs' counsel and plaintiffs were scheduled to meet and discuss discovery issues the following Monday.

The following Monday was September 14. And counsel for NCO had been specifically told that the meeting on that date was to discuss discovery issues. Part of the meeting was about the depositions we were scheduled to give at the opposing side's request. But it also involved discussion of information we intended to seek in discovery--through extensive interrogatories and production of documents.

What was counsel for NCO thinking at this point? Here's our guess: When plaintiffs meet with their attorneys about discovery issues on September 14--and the discovery deadline is October 30--that's a pretty clear sign that plaintiffs plan to seek substantial information about the way your client conducts business. This prospect probably made the defendants none too happy.

So what might angry--and worried--defendants do in such a situation, particularly when they knew their wrongdoing had been caught on audiotape?

Well, consider what happened to my wife on September 16, two days after the discovery meeting with our attorneys. Out of the blue, she receives a written notice that she is being placed on probation for alleged tardiness in her job at Infinity Property and Casualty.

Never mind that in late June she had been told to change her start time from 9 to 9:30 a.m. in order to help serve the company's large customer base in California, which is on a two-hour time difference from Alabama. Never mind that one of her superiors admitted she had been told to start working at 9:30. Never mind that Infinity violated its own employee handbook on multiple grounds in the handling of this matter. And never mind that no one at Infinity had said a word about my wife's alleged tardiness--until two days after the discovery meeting with our attorneys.

The alert reader will ask this question: "Schnauzer, you seem to be saying that there is a connection between Infinity Property and Casualty, where your wife worked, and the people involved in your lawsuit against debt collectors. After all, it's hard to imagine that Infinity would cheat your wife out of her job if the company did not have some connection to the opposing side in your lawsuit, right?"

To borrow a line from the late, great Ed McMahon: "You are correct, sir!" And you ask an insightful question.

We have an insightful answer, and we will be posting about it shortly.

Meanwhile, here is a copy of our response to NCO's request regarding our medical records. It shows that opposing counsel went pretty far off the deep end on this one:

NCO Medical Protective Order

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