A lawsuit was brought against me by the firm of Messerli & Kramer (Attorneys William Hicks, Derrick Weber, Jefferson Pappas, Jeffrey Cohen and Matthew Smith) for the purposes of collection on a Chase Bankcard credit card account on behalf of River City Financial, LLC as Successor in interest to Chase Manhatten Bank.
Prior to Messerli & Kramer's involvement, this matter was arbitrated between Bette and Chase Bankcard in September - October, 2002 and an Award was issued in Bette favor. Copies of the Notice of Arbitration Agreement and subsequent Award were served upon Chase Bankcard. The appropriate fees were paid and the proper course of action was followed in arbitration matters.
Messerli & Kramer have come on the scene after this matter was arbitrated and have now brought a lawsuit against me in violation of the terms of the Notice of Arbitration Agreement. In addition, they represent a third party debt collection agency and have refused to provide me with any documention. They have no billing statements nor any type of signed bank card agreements nor any documentation with my name on it relative to an account with Chase Manhatten. All they have produced is a copy of a standard issue, generic Chase Manhattan Bank cardmember agreement with no proof of mailing it to me whatsoever. Further, I have signed no contract with River City Financial nor retained or utilized them for any products or services for which I owe them any money.
I am including below my Affidavit regarding the harassment and abuse in the service of their improper, unjustified Summons and Complaint upon me. Messerli & Kramer crossed the line pertaining to ethical behavior, professional conduct and simple decency in repeatedly utilizing the agent who acted as their process server. The Fair Credit Debt Collection Practices Act was also violated in the harassing, abusive manner and method of process service tactics.
1. That on repeated occasions, Officer Thompson, Hennepin County Deputy Sheriff, Badge No. 193, has been engaged in improper behavior, methods and tactics in his attempted service of a Summons and Complaint upon Affiant relative to the above-captioned case out of keeping with good and accepted standards of practice for service of process.
2. That Officer Thompson's conduct is an abuse of police power as he has exerted unlawful, extreme and unjustifiable tactics in attempting service of process.
3. That on several occasions Officer Thompson taped his business card to the Affiant's doors, windows, garage door and siding using packing tape, leaving multiple cards taped to various locations at one time. That Officer Thompson had written Call Me on each of the business cards. That the packing tape caused damage and defacement to Affiant's property. That the method and the excessiveness related there to was unreasonable, unjustified and done for the express purpose of harassment and intimidation. That the posting of Officer Thompson's business cards served no lawful purpose as the Affiant had no duty or obligation to contact him with regard to his repeated appearances at her home.
4. That on at least one occasion Officer Thompson was heard by the neighbors yelling outside, This is the Sheriff and repeatedly banged on the front door and garage door, disturbing the peace and creating public humiliation for the Affiant.
5. That on the evening of Thursday, December 26, 2002, while returning home from work, the Affiant noted Officer Thompson's unmarked car parked down the street from her house as he was deliberately stalking her and awaiting her appearance. Affiant drove past him and he promptly began following her through the surrounding neighborhoods. Officer Thompson then turned on his flashing lights at which time Affiant pulled over and parked. Officer Thompson approached Affiant's car remarking sarcastically, Well, Bette, we finally meet. Affiant responded asking who he was and what he wanted. He indicated his name and identified himself as the one who had left the cards. Then he asked why Affiant had not called him. Affiant responded indicating that she had no duty or obligation to call him, that she had no business with either him or the Hennepin County Sheriff's Department and had no reason to contact him.
Affiant further stated that Officer Thompson was performing a paid service involving a private legal matter with no requirement of or connection to performance of law enforcement duties on behalf of the public. I indicated that he was and had been harassing me and that I intended to file a claim against him. I asked him again what he wanted and he stated that I had a brake light out. I explained that my brother had been at my home on Christmas Day to fix it, found he lacked the proper tools and would be returning the following morning to fix it. I asked for the Officer's phone to call my brother to verify my story to which he paid no heed. Officer Thompson returned to his car to write up a citation which he spent an inordinate amount of time doing (at least 20 minutes) to the extent that the Affiant finally turned off her car and shut off her lights due to the excessive gas consumption. This delay was further intended harassment on the Officer's part. He reappeared immediately after the Affiant shut off her car to take Affiant's drivers license. Again he went to his car and took an additional inordinate amount of time. Finally he returned with a citation, and in addition threw a Summons and Complaint in Affiant's car and stated, Here's a Summons and Complaint for you. Affiant indicated again that she would be filing a harassment complaint against him.
6. That the harassment and intimidation tactics used by Officer Thompson were unlawful and improper and not in accordance with standards of good practice for service of process. Furthermore, the utilization of his unmarked vehicle in an official capacity for an unofficial civil purpose is a breach of duty and an abuse of power. That his issuance of a citation was secondary and was used to gain personal access in order to fulfill his primary purpose of service of process. That the two were separate and distinct actions utilizing public law enforcement methods to achieve his purposes in a paid, private matter. That the two are incongruous and were unlawfully combined.
7. That on the morning of Friday, December 27, 2002, Affiant's brakelight was repaired and the police citation taken to the Southdale division of the Hennepin County District Court for addressing before an official. Affiant explained the circumstances surrounding the issuance of the citation before a Hearing Officer at which time the citation was summarily dismissed.
8. That also on the morning of Friday, December 27, 2002, a call was made by Affiant to the superior of Officer Thompson regarding Officer Thompson's inappropriate and improper behavior, manner and methods of attempted service. The Lieutenant had no legitimate explanation as to why the Hennepin County Sheriff's Deputies are not required to adhere to the same accepted standards of good practice and decency which all other private process serving companies in Minnesota must adhere to.
9. That the law firm of Messerli & Kramer, P.A. is equally guilty of improper and unlawful service methods in their utilization of Officer Thompson to serve their Summons and Complaint upon Affiant in the above captioned case. That they are in violation of proper and accepted standards for service of process and should be sanctioned and punished for condoning and engaging in unethical, improper and unlawful conduct in the hiring of Officer Thompson, Hennepin County Deputy Sheriff, and entrusting him with the duty of service of process of their legal documents, thus giving credance to his methods and tactics.
10. That this lawsuit should be dismissed against Affiant Defendant for multiple violations and breaches associated with attempted service of the Summons and Complaint herein in the utilization of unlawful methods including harassment and abuse which are in violation of the Fair Debt Collection Practices Act, Sec. 1692dd. Harassment or abuse.
Further your Affiant saith not save and except for the statements contained herein.
Messerli & Kramer is in violation of the Fair Debt Collection Practices Act, Section 1692e: False or misleading representations: (10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer. The only tangible item they have provided me with to indicate any knowledge of and/or proof of their right to collect on a debt is a copy of a standard issue, generic cardholder agreement with a creditor which is directed to no one individually and is addressed to no one specifically and is not dated and, therefore, it is unknown what period of time it was even relevant or applicable to.
Furthermore, they have produced no hard copy evidence or valid documentation associating my name with any alleged debt that they purport I owe and which they are attempting to collect on. Since they have offered no valid proof or documentation of any personal association by me with a debt alleged by a creditor, nor any proof of a written contract and/or signed agreement or consent by me to transfer any alleged account to them as collector, nor any evidence that I have any obligation to pay said collector for any products or services delivered by them, they have no right to payment from me. As far as I'm concerned, they are using fraudulent, deceptive practices in an attempt to collect on a debt that they have no right to receive payment for.
Further, in so far as the arbitration proceeding is concerned, it was with mutual consent that Chase Bankcard and I entered into alternate dispute resolution. Chase Bankcard and I were given sufficient time in which to produce documentation, arguments and evidence in support of our claims which were submitted to the American Arbitration Forum, Inc. There was no opposition voiced, no objection made nor issues raised by Chase Bankcard so there is no further documentation to produce. A decision was awarded in my favor and the ruling stands.
With regard to the harassment, intimidation and abuse charges against the deputy officer of the Hennepin County Sheriff's Department in attempting service upon me, Messerli & Kramer had an ongoing, working relationship with the particular officer involved, Officer Thompson, as they utilized him exclusively in obvious repeated service attempts. It is with virtual certainty that Messerli & Kramer encouraged or even directed the officer to behave in the aggressive, unethical and inappropriate manner he exhibited. Officer Thompson would have reported back to Messerli & Kramer as to the success of his efforts which is standard practice for process servers.
Given the fact that these attorneys are in the debt collection business, it is quite possible there may have been some added incentive or compensation offered to Officer Thompson to ensure expedited service as there is no commonsense, logical reason why a respected officer of the law would behave in such an unethical, ill-mannered and inappropriate way. Process servers employed by private companies would not dare utilize such tactics. Messerli & Kramer at the very least condoned the conduct of Officer Thompson which is the same as sanctioning and approving it. It may be helpful to subpoena the records of the Hennepin County Sheriff's Office, Civil Division, and Messerli & Kramer to establish that there was instruction and encouragement given by Messerli & Kramer to Officer Thompson.
A complaint against Messerli & Kramer was also submitted by me to the FTC, the agency that monitors compliance with the Fair Debt Collection Practices Act, in February of 2003 with a copy sent to Messerli & Kramer. Messerli & Kramer never responded nor defended themselves as to their non-validation of debt and their right to collect nor as to the claims made relative to the deputy officer. Their failure to respond to these allegations is equivalent to an admittance of guilt and should be considered a condemnation against them and an indication that they knew they were in violation of the FDCPA but deliberately chose to ignore its mandates.
Within the Defendant's Response to Plaintiff's Notice of Motion and Motion, the first paragraph brings up the matter of the Affidavit of Yrazema Garcia provided by plaintiff River City Financial which is sworn testimony on oath by one of their employees as to her supposed knowledge of Chase as to my account. This testimony is purely bogus and constitutes perjury.
I attached copies of material in my possession counteracting her testimony consisting of two letters from Chase acknowledging my letters of dispute regarding my account which she said did not exist as well as additional correspondence from the arbitration forum indicating their communication with Chase.
The fact of the matter is that neither River City Financial nor Messerli & Kramer have in their possession any correspondence nor communication between Chase and defendant. They are not even in possession of copies of my account history consisting of billing statements. How could they possibly pretend to have any knowledge of disputes or problems between Chase and myself when they have absolutely no paperwork reflecting even the most basic information. For them to purport that they were privy to any such material is a blatant lie.
In addition, I enclosed a copy of Plaintiff's Responses to Defendant's Interrogatories and Requests for Production of Documents which was signed by Yrazema Garcia before a notary public several months earlier. You will note that within that document,it is admitted that they had no other documents relative to the account in question outside of the generic billing statement, that said materials were destroyed or unavailable. In other words, they have no record of correspondence or communication between Chase and defendant in their possession to even refer to or they would have produced it. They had no copies of the documents which I have produced in their possession.
In addition, Plaintiff relies on Yrazema Garcia as the defining factor relative to the supplying of the generic cardholder agreement to defendant with no proof of its being sent. She was never employed by Chase Manhatten, only River City Financial, LLC, assignee. This is purely ludicrous in light of the thousands of supposed agreements that they purport to send out, claiming that somehow Yrazema Garcia has psychic knowledge that one was sent out to defendant. In addition, for the Lawyers Professional Responsibility Board of Minnesota to stand behind this contradictory, duplicitive testimony only bespeaks of their bias and prejudicial tendencies regardless of how absurd.
Based upon the above, nothing that is set forth as truth within the Affidavit of Yrazema Garcia can be relied upon as fact and the entire document should be thrown out based upon its lack of veracity and truthfulness. Obviously the plaintiffs are manufacturing information based upon false assumptions towards achieving their own ends. They're making a mockery of the very principles they've been sworn to uphold. This is an arrogant, above-the-law mentality and should not be tolerated.
In addition, defendant continues to maintain that there was deliberate condoning and encouragement by plaintiffs of the deputy sheriff's blatant harassment and abuse in attempting to serve the defendant as evidenced by the Affidavit of Bette previously submitted. The same deputy came back repeatedly on as many as six occasions as he taped his business card indicating his name all over her premises, defacing her property. This behavior is not standard and is totally unacceptable. Process servers employed by private process service companies are not allowed to act in such an unprofessional, harassing manner under any circumstances.
As a former legal assistant, I am well aware of the good standards of practice for process servers. I surmise with certainty that there did exist an ongoing working relationship between the deputy and Messerli & Kramer's staff. No defense has ever been made or offered on Messerli & Kramer's own behalf as to this entire matter. This silence in itself is an obvious attempt at circumventing the issue and avoiding the truth.
In summary, River City Financial, LLC bought an account from Chase Manhatten that had already been arbitrated wherein the decision was rendered in favor of the accountholder and the matter concluded. Messerli & Kramer on behalf of River City Financial, LLC is now fraudulently making claims that no correspondence was ever exchanged between accountholder and Chase Manhatten when the employee of River City Financial, LLC, Yrazema Garcia, in her own sworn testimony indicates that the assignee River City never had any documentation in their possession from Chase Manhatten regarding the account other than a generic cardholder agreement.
River City can't truthfully state on one hand that they as the assignee never received nor possessed any documentation from Chase Manhatten relative to an account because it had been destroyed previously or was unavailable and then turn around and act as self-appointed spokesperson for Chase Manhatten and state that Chase Manhatten never received nor exchanged any communication with the cardholder as the cardholder indicated even though she provided copies. The fact that Yrazema Garcia swore to both documents containing opposing information is contradictory and she has perjured herself under oath.
The Lawyers Professional Responsibility Board and Dan Kelly, investigator, are in the process of reviewing this matter to render an opinion as to unethical, inappropriate behavior on the part of Messerli & Kramer. Their decision will be posted when it arrives.
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