Consumer complaint received 2017-12-08
Company: Messerli & Kramer P.A.
State: MN
Product: Debt collection
Sub-product: Credit card debt
Issue: Took or threatened to take negative or legal action
Sub-issue: Sued you without properly notifying you of lawsuit

Complaint:
I am re-producing below a series of e-mail messages I sent to the Collection company / law firm ( XXXX XXXX XXXX, located in Minnesota ) :  =================================================== [ E-MAILED XX/XX/XXXX ] XXXX, Once again, I renew my request that you and your Collection Law Firm approach the XXXX County District Court on your own Motion and vacate the judgment you recently got against me. I will not repeat the merits you and I know are behind that request ; I have already detailed them ( see prior correspondence in that regard, detailed below ). And no reason you have given me can justify your decision not to vacate the potentially financially-ruinous judgment, ESPECIALLY SINCE YOUR FIRM 'S ACTION OF FRUSTRATING MY ABILITY TO VACATE THE JUDGMENT WITHIN THE STATUTORY DEADLINE CAN LATER ( AND RIGHTLY ) BE VIEWED BY A COURT OR TRIBUNAL OF COMPETENT JURISDICTION AS A DELIBERATE ACT TO OBSTRUCT JUSTICE. 
If you still remain adamant not to vacate the judgment on your own Motion, despite the GLARING EQUITIES IN MY CASE ( AND WHICH I AM SURE YOU KNOW ), I will not only approach the XXXX County District Court to do so ( no matter how long that takes me ), I will also file complaints against your Collection Law Firm with the Federal Trade Commission ( FTC ), the Consumer Financial Protection Bureau ( CFPB ) and the Minnesota State Consumer Protection Office, among other such entities ... 


=================================================== [ E-MAILED XX/XX/XXXX ] I hope this meets you well, XXXX. 
I write primarily to reiterate the request I made to you the last time we spoke on 'phone -- -just after your Collection agency / law firm enforced a judgment it obtained via a " Confession '' of Judgment and emptied out my bank account : that you approach the XXXX County District Court on your own Motion and vacate the judgment. I make that request mainly for the fact that the consequences HAS BEEN / WILL BE ONEROUS and totally out-of-sync with the amount of the debt your company seeks to enforce upon. Already, I have been denied the opportunity to RENT ( not even BUY! ) a home because the landlord said I have a judgment on my record. I also estimate that I will potentially lose thousands of dollars in potential credit offers and other financial opportunities should this judgment your firm obtained against me continues to sit on my public records. 
Even more, I also submit that your firm 's actions of CLEARING OUT the money from my account on XX/XX/XXXX, just four days before the statutory deadline of XX/XX/XXXX, under Minnesota law, that I had to file a Motion before the Court to ask that the judgment be vacated, EFFECTIVELY FRUSTRATED MY RIGHTS, GUARANTEED UNDER MINNESOTA LAW, TO VACATE THE JUDGMENT YOU GOT AGAINST ME. AND I AM CONFIDENT THAT HAD I BEEN ABLE TO FILE THAT MOTION BEFORE THE DEADLINE ( AS I HAD FULLY INTENDED, BEFORE YOUR FIRM 'S ACTION HAPPENED ), THE MOTION TO VACATE THE JUDGMENT WOULD HAVE SUCCEEDED, BASED ON THE EARLIER CORRESPONDENCE I SENT TO YOU. 
When I first broached this request to you about a month ago, you had responded that your client would be " burdened '' by it and had " nothing to gain from it '', implying that it would cost your client some money to do so. Although your firm effectively frustrated my getting relief in Court regarding the judgment ( see above ), I still reiterate my offer I made to you then to cover the cost, if any, of your approaching the Court on your own Motion to vacate the judgment. I further propose that such a cost be added onto the monies I still owe your firm, under current installment agreement we have ... 

=================================================== [ E-MAILED XX/XX/XXXX ] Dear XXXX XXXX and XXXX XXXX XXXX, I write regarding the Order and Judgment you recently got against me in XXXX XXXX XXXX XXXX ( see attached Exhibit 1 ), sequel to the Confession of Judgment / Stipulation of Settlement and Warrant of Attorney to Enter Judgment by Confession you also had me sign in XX/XX/XXXX. 




The Judgment is with regards to a consumer debt/credit facility I had secured with XXXX XXXX XXXX, which is a successor-in-interest to the original debtor. 




I was very surprised and disappointed that despite the very GOOD FAITH efforts I had made over the course of many months -- -even years -- -to satisfy my obligations regarding this debt, you/your Collection Law Firm went ahead to secure a COURT JUDGMENT against me. The facts, as represented in the same judgment you secured against me, speak for themselves : sequel to the XX/XX/XXXX Stipulation referenced above, I have paid close to {$3000.00} to your law firm in satisfaction of my obligation under this debt ; the outstanding amount, according to the same Order of Judgment is less than {$1500.00}, a far cry from the original amount. 


This period of the re-payments also coincided with the VERY WORST PERIOD of my life so far, which has included a very unfortunate separation ( in XX/XX/XXXX ) and subsequent divorce ( in XX/XX/XXXX ) from my wife of XXXX years, who is also the mother of my XXXX children ( see attached document regarding the divorce proceedings marked Exhibit 2 ). Despite the fact that the forced separation made me near-destitute ( in late XX/XX/XXXX ), especially financially, I made strenous efforts to keep up paying on the XXXX debt. I also made sure to keep in contact with your law firm staff regarding my payment, including XXXX, and later one XXXX ... 


In XX/XX/XXXX, I had contacted XXXX to make arrangements to make ongoing monthly, manual payments on the debt. Shortly after, due to the stress of the divorce and other unfortunate events, such as a medical XXXX I had due to the fact that I am a XXXX XXXX patient ( XXXX XXXX XXXX ; see attached document marked Exhibit 3 ) ... 

I subsequently made numerous attempts to contact XXXX then and continue the payments, as I am certain records your Office / law firm is mandated to keep will show. XXXX neither took my calls nor called me back. It was a few weeks later, when I received the Order of Judgment in the mail, that I realized why XXXX had conducted himself in that way towards me. 

After I called again and was able to speak with you, sometime in late XX/XX/XXXX, I respectfully requested that you approach the XXXX County District Court on your own Motion to vacate the Judgment, based on the circumstances I outlined above ( i.e. the good faith I had shown in re-paying the loan over the past few months / years and my personal crises, especially earlier this year ). You had responded that such a move on your / your Offices part would result in costs to your Client. I had then offered to bear those costs and that they could be factored into the outstanding debt in a new agreement before us. I also undertook that I would liquidate the entire outstanding debt under the new agreement within 6 to 8 months. 




You declined and said I should consider filing a Motion to vacate the judgment, under XXXX XXXX XXXX.. The deadline to do that, according to the attached Judgment Order, is in a few days ( Thursday, XX/XX/XXXX ). 




I wish to reiterate, at this point, that the Order and Judgment you recently secured against me is premised on a Confession of Judgment ; the latter is, at best a contract of adhesion which affords the creditor ( you / your office ) unequal power over the debtor ( me ). Your Office drafted the entire terms of the contract and simply ordered me to sign it, failing which you would have moved to secure a Judgment against me at that time. I had to sign that contract to avoid that unsavoury development and I was able to keep you at bay, so to speak, until you now invoked the provisions of this unequal contract and secured a judgment against me at the same time ; this is the same period I am struggling mightily to recover somewhat from the harsh financial consequences of a debilitating and unexpected divorce, including RE-BUILDING MY CREDIT, so I can once again qualify to even rent ( not buy ) a house! 




The Judgment you have secured against me and which you refuse to vacate on your Motion as I have repeatedly pleaded and requested will not help matters at all in this regard. 
Minnesota courts disfavor contracts of Confession of Judgments, such as the one that is the basis of the judgment you secured against me. The Minnesota Supreme Court, while recognizing the disadvantages to the debtor inherent in such contracts, mentioned in dicta that such contracts do infringe constitutionally-guaranteed rights of the debtor, such as one to a Fair Hearing, and that ... the burden of proving a valid waiver of constitutional due process rights should be on the creditor ... See XXXX v. XXXX XXXX XXXX XXXX ( XXXX ). 


In addition, according to initial research, I also believe that the Confession of Judgment / Stipulation of Settlement and Warrant of Attorney to Enter Judgment by Confession that is the basis of your recent action against me in XXXX County District Court has certain procedural deficiencies under Minnesota and federal law, especially the natural persons provision of debtors subject to such a contract. In addition, other research and counsel from consumer attorneys lead me to believe there may be violations of the Fair Debt Collection Practices Act ( FDCPA ) 15 U.S.C. 1692-1692p ; this might include the mandate that every debt collector under the FDCPA and any subsequent debt collector must send a validation notice ( s ) to a consumer ( XXXX v. XXXX XXXX XXXX XXXX XXXX XXXX.  XXXX XXXX ( XXXX. ) ( XX/XX/XXXX ) ) ; and the stricture that a failure or inability to itemize the amount due in an initial demand letter can state a claim under the FDCPA ( see XXXX v. XXXX XXXX XXXX, XXXX U.S. Dist. XXXX XXXX ( XXXX XXXX ) ( XX/XX/XXXX ) ) ; among others. 



I also believe there may be violations of Section 5 ( a ) and Regulation AA of the Federal Trade Commission ( FTC ) Act. 



In conclusion, I respectfully reiterate my request that you approach the XXXX County District Court,  on your own Motion, to vacate the Judgment you / your Office recently secured against me. I also reiterate my offer to bear those costs associated with such a move on your part. Such costs, as I said, could be factored into the outstanding debt to be repaid by me in a new repayment agreement between us. I also undertake to liquidate the entire outstanding debt under the new agreement within 6 to 8 months. 
I hope to hear from you regarding this matter, at your earliest convenience. 




Regards.

Company public response: Company believes it acted appropriately as authorized by contract or law
Company response to consumer: Closed with explanation