The motions probably amount to attempted fraud on the court and represent the latest action in a lawsuit my wife and I filed against Pennsylvania-based NCO and Birmingham-based law firm Ingram & Associates. The suit alleges multiple violations of the Fair Debt Collections Practices Act (FDCPA) and related state-law claims.
At issue are audiotapes I recorded of conversations with representatives for Ingram & Associates, who were working on behalf of NCO and attempting to collect a debt allegedly owed to American Express.
The audiotapes present indisputable evidence of FDCPA violations, but lawyers for the debt collectors now claim that I failed to produce one of the tapes during the discovery process. Because of that, the lawyers state in court documents, the tape must be excluded.
There is one problem with the debt collectors' argument. It is based on false information. And our lawyers responded with documents that prove the debt collectors knew their information was false.
Wayne Morse, an attorney representing Ingram & Associates, filed the original motion claiming that I had withheld evidence, and the tape in question must now be excluded. (See the full motion below.) Morse is with the Birmingham law firm of Waldrep Stewart & Kendrick. Lawyers representing NCO quickly filed notice that they were joining Morse's motion.
Why would I "withhold" a tape that helps conclusively prove our case against NCO and Ingram & Associates? Morse has no answer for that one. But he does make plenty of wild accusations, claiming:
* I failed to mention the first of three audiotapes in initial disclosures;
* I failed to produce the first of three audiotapes in the discovery process;
* I stated under oath in a deposition that only two audiotapes existed;
* I cannot blame the failure to disclose on my attorneys because I filed the lawsuit myself, acting pro se.
All of Morse's claims are false or grossly misleading. Here is how our attorneys, Darrell Cartwright and Allan Armstrong, responded in court documents. (See full reply below.)
Defendant Ingram makes great hay of his claim that the Shulers did not disclose a third audio recording to the Defendants. Defendant Ingram's exhibits to their motion to strike show exactly the opposite--in fact, a startling five (5) separate instances in Defendant Ingram's own exhibits hereto disclose the very audio recording he falsely claims was not disclosed.
Let us repeat: Ingram's own exhibits, prepared by Wayne Morse, show that his claims are false. How do we explain Morse's bizarre actions? Is he incompetent, mentally impaired, corrupt?
We will leave those questions hanging for now. But the bottom line is this:
* I did disclose the existence of three audiotapes;
* I did not fail to produce the first audiotape;
* I did not state under oath that only two audiotapes existed;
* And while I did initiate the lawsuit myself, I was represented by counsel during the discovery request--and he handled that aspect of the case.
More importantly, Ingram & Associates' claim that the first audiotape must now be excluded for any reason is not supported by fact or law.
We have discussed fraud on the court here at Legal Schnauzer before. And while I am not a lawyer, it appears that Wayne Morse's actions in this case come extremely close to fitting the description for fraud on the court. It's been clear for quite some time that NCO and Ingram & Associates have no defense for their actions in our case. So to what do they resort? Trying to pull a fast one on the court.
Time will tell whether they succeed. But this much is clear: Our lawyers have filed documents with the court showing that Ingram & Associates did, in fact, receive the first audiotape. And if they do not currently have that tape, it is their own fault--not mine.
For now, here is Ingram & Associates' motion claiming that I withheld evidence, followed by our response.
Ingram Motion Withholding Evidence
Shuler Response Withholding Evidence
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Looks like you have a little problem with spelling. Interesting that your computer got stuck on "KKK." Is that sort of like the word "comong"?
Roger, all isn't lost. An attorney I used to work for failed to properly submit evidence during an auto accident case and we managed to get it in anyway by using a rule called the "business records exception." Also, you should forward a copy of the tape to the District Attorney's Office for Shelby County. Although it's a rare occurrence, debt collectors have been known to have creditors prosecuted for making false and/or threatening statements to them over the telephone. There is a split of authority on lawyers using the possibility or threat of criminal prosecution to settle a civil case, but as a non-lawyer you don't owe the Alabama State Bar anything.
It's not a matter of anything being lost. The evidence was submitted, and I will be providing proof in an upcoming post.
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