collector within the meaning of the debt collection practices act the second issue which is secondary frankly is whether judge bar b a who was the second trial judge on the case committed error when he reversed judge barrack ins previous decision certification certifying the f t c p a class you would not reach the second issue unless of course you first found that the motion for summary judgment was inappropriate so this morning i'll be spending the majority of my time addressing creating state laws of motion for summary judgment on the issue of its status as a debt collector i don't think that the parties dispute to a large extent the all that applies to the question of whether someone is a debt collector or not within the meaning of the f t c p a a certainly we may spin the cases a little bit differently to suit our interests but the trial court's decision below turned the poison his belief that the summary judgment evidence that we submitted on cost motion for summary judgment was inappropriate summary judgment evidence and i don't see how that's possible given that the evidence that we relied upon was the same evidence that steeg law  first name again but they had those two affidavits and attached to machine a's affidavit were billing records which stieg law identified as as the number of files that it ha to debt collection activity and then they took that and calculated a percentage of revenue and submitted it to the court and said essentially well for two thousand and ten two thousand and eleven and two thousand and twelve are the amount of revenue from debt collection activity constitutes one percent one point one or one point three percent of our total lending a lot of revenue and so that's insufficient for us to be a debt collector as a matter of law and that's really what their argument was and so what we did citations to the record on that issue you'll see that the names of the billing piles ok are things like collection of unpaid condominium fees ok condo fees you know they're all collection of this collection of that and so this idea that they've tried to spin later by saying oh wait this really isn't for collection of fees that's the name of the file it's the name attached to your billing record this is what we called it ok so what we did upon receipt of this affidavit because we just took their billing entries now they redacted the description of the billing in trees from the bill they said that's attorney client privilege we're not going to tell you the substance of what it is that we did on the given day but they left the date and they left the initials and i think they left the timeframe but you can look at the exhibit but even if you took all of those together no more than three point five percent it's actually less than that ma'am it's about one point three percent of their revenue but what i did was because there is no bright line rule test let's just put it on the calendar ok and i literally put their time entries on a calendar and what you end up with in a period of less than three years is a thousand forty nine separate time entries where they're billing time to a file that is called collection of unpaid condominium fees let me let me ask you a question though you do acknowledge that there were only thirty four lanes placed in that period there were believe thirty six letters sent submitted two different summaries of our evidence if you will one of them was based on the the billing records of the stigler farms admitted and then the other one was based on public records documents such as for example the lien letters that we had what's the calls lien letters a collection letter and we attached each one of those there were sixty six i believe in the two year period before and i think there were thirty five or thirty six in the one year period of  the of the actual lawsuit itself then on top of that there were thirty four lanes but if you're actually assessing whether that's a debt collection activity they have to prepare the only that they have to meet with there or where their client to execute the lane and they have to f so i understand we're talking about thirty four lanes but in terms of ongoing debt collection activity it's not a a snippet in time if you will write these ongoing a strap on these condominiums and theory and they're not just doing random collection these are their clients from where they in the sense that are they doing more for them than only doing debt collection yes i absolutely agree with that your daughter and i'm not saying that steve law is a you know a debt collector in the sense well i'm about to it's a it's of say not substantial is a portion of the work that you do related to it and this court has even said that zero point five percent of your revenue is enough to constitute being a debt collector within the meaning and that is the garrett versus derby's case the in the court also in the hester versus graham brighton smith case kind of summarized what the law is in the fifth circuit for purposes of whether someone is a debt collector but what i think is really interesting is the hester case cited with approval to the goldstein case from the second circuit in the goldstein case actually involved of a law firm that had revenues gross revenues it literally says some of them even say this is a letter from a debt collector but to address the question that you just raised in the glazer case for example page twenty one of my rebuttal brief quote every mortgage foreclosure just judicial or otherwise is undertaken for the very purpose of obtaining payment on the underlying debt that but i'm so saying i've looked at this issue before and the case draws a very fine line because for closing the lane is specifically exempted from the f t c p a because brief well i apologize i'm sure there's i could have been more clear on that point but what but i do want to get back to though is this idea is it because the district court said i can't even consider this calendar of events that you've prepared based upon the billing records because you're inviting me to assume that this is related to debt collection except that stigler also on affidavits very specifically said hey here's our billing records pertaining thousand entries and each of them is a series of events connected with ultimately thirty four thirty three explained then the most you can say they're doing is demanding payment and so forth and thirty four thirty six matters but the question is not how many matters it's are you doing it regularly you know regularly means well it regularly doesn't mean how many e mails do you spend it i mean that's not the way the of the cases have done it well that what the cases actually say serves no priceline test each case has to be looked at on a case by case basis and you know they give exemplary factors that you can consider but there is nothing to suggest that you can't look at literally how often somebody is engaging in debt collection activity and in this case it's more than once a day saying the distinction is that if if they had a flat fee for sending out a letter and threatening the lean and handling the fork foreclosure or lawsuit if need be if they send out one letter then there would be thirty four such letters and that would not be regular but the fact that they took different actions on different dates and build them separately in the hours it's all makes all the difference they will not be doing that at all what i am saying is that what regular is ok absolutely unequivocally if it's more than in the in the ghosting case more than point zero five percent was enough ok and they actually had one hundred forty five letters in less than a year's time if you actually take a look at about almost five times this will be that's just the leans me i mean if you're if you address the if you address the letters which is one thing and then you have the the lames which is separate that collection activities it is separate collection activity because one is a letter and one is following a link for me skeptical just because you're there you know that at the most you have three dozen tenants who are on the hook right but they're not tenants their owners they own the problems are you that's correct that that's correct that i believe that to be approximately true yes ma'am but on the other hand the question is not how many people were involved but how much or how regularly is the debt collection activity being engaged in and i don't think there's any question but that the state law firm was regularly engaged in debt collection activity as reflected by their own time and billing records there's a court having questions for me at this time i believe the big misconception that mr crawford employs in this case is that the assumption that a collection in and of itself automatically qualifies that collection stieg law in and of itself as a real estate firm who treated or took care  of the legal needs of the con various condominium associations the entirety of their collection work was incidental to the work you perform for those condominium associations it was a simple matter of not letting the work walk out of the door when you had a client there who you provided the the other misconception that mr crawford applies is that all of these actions that resulted in some sort of collection whether collection for fees or some sort of aspect that resulted in pursuing money on behalf of time and him associations was in fact jumped on something i was going to get to the louisiana condominium out for choirs prior to the collection of any fees or assessments or costs related to violations by your tenants to send out a letter such as a letter that was sent here in order to whatnot relating to its regularity to show the irregularity included in instances the actual liens that were filed and for security interest but judge jones you've hit the nail on the head as well per se finding saline or enforcing a security interest is not debt collection under the f t c p s a so what it really boils down to is that there is a lack of regularity within stieg laws debt collection practice which is purely incidental  or threatening a lien when you don't have a property right in that in that or an interest in that thing you're trying to foreclose on i don't i mean we don't have to get to that issue here do we know because i mean when i looked at it some circuits it held rather broadly that if you notice of lien foreclosures you have the option to either pay up or we're going to foreclose on you lean but that might in fact require th standards of sixty ninety two aesthetics that doesn't apply here so we don't get into the ambit of liens being debt collection but i want to stretch the court that the numbers that are before you with respect  to the billable hours and i believe the revenue those percentages anticipate if you include the liens collect the lien amounts in there you still don't meet that collector status you're still below the threshold one of the big points that has come up case that we have sated in our brief put this explicitly well when you look at a percentage the percentage has to take into account the size of the firm or the numbers that you're anticipating in reaching that decision so for example in the garrett case there's an exponentially large amount of actions that are taken in the history case that mr crawford himself cited there are over nearly one thousand instances of the court considered when told everything up of debt collection within a one to two year period we're not talking about that in this scenario and as the origin teary case says when you have a smaller firm or a smaller entity who's in gauging in a small number of actions they may technically end up with a higher percentage that would beat someone like a wells fargo who has thousands of employees engaged in thousands of actions the bottom line for steve law is to go out to a very small very small number of actions as a very small firm so the one point five percent  the revenue numbers all of these numbers show that it's a small firm who has a very small percentage as opposed to a large firm with a small percentage of the number that mr crawford throughout was in the point means really small yes ma'am yes there's it's not a situation where you can be deceived by a small number because it's hidden you know it's not one percent of ten million for example so what were the numbers why in conjunction with the small debt collector that is what it is required to show steve law as a debt collector under the f t c p s a when the f t c p a was first and acted it had an exception for attorneys and once attorneys began engaging in the practice of debt collection in direct competition with those traditional debt collectors the exterior amendment was an act that included the inclusion of attorneys under certain circumstances but as we brief the importance of that point was to add attorneys into the f t c p a when they were kin to your traditional debt collectors it was not anticipated to say any attorney who comes in and subsequently engages in some debt collection suddenly becomes a debt collector there needed to be that nature where you have an attorney who is working almost as though they are solely a debt collector and that is not steve lost cases the record makes clear this was incidental work as the result of prior condominium association clients  another thing that mr crawford dressed was that it was he was not clear how the court or any court could determine that the top of the evidence that was put before the judge bar v a in the summary judgment was was not  mr crawford in creating a document it was a document where one of their attorneys went down and reviewed mortgage and conveyance records and if they saw a lean father apparently they said this is debt collection if they saw certain transactions in the mortgage and conveyance records paid finance or financial compensation for attorney's fees miss ray i said this is that collection and that bunch of the a bunch of the entries according to them did say collection activity collection activity on some of the there was a speeding incident the parking lot there are people who installed non code items in their in their condominiums those arc are analyzing our numbers as though in assessing them as collection we would still hit these but it was a variety of issues essentially this all started from my understanding miss ray as had a dispute with the condominium association that that pro long and at some point it became a tipping point she followed suit and we were kind of looking for from us and it was not for i don't remember the specific number i remember it was at least six figures at some point but toward the end but from us it was violations of the at the c p a penalties standard that judge barbie is held to in order to determine whether or not he should have decertified the class i believe the history in the certification itself is important when this first came up for certification there was an assessment and assertion from the plaintiff that i believe was the case so the certification occurred and then throughout this litigation in the ensuing years no one ever came to light beyond the twenty five that we had said all along were there we believe in and asserted that the twenty to twenty five individuals who can be readily identifiable while there might be some geographical restrictions do not meet the numerosity requirement that they we essentially if they still live in the condominiums they still have their addresses in the letters this is not a situation that required much a we there's an it but the representation is that we're going to find this plane at some point on that just never that never happened and but we understand that the initial certification on the basis of future discovery just  never came to light particularly after that initial certification motion we had a number of plaintiffs a number of claims claimants dismissed because they were like i said not non natural persons that you had corporations and there was a west monroe attorney who has a couple of condominiums in the museum in new orleans for marketing events and bringing clients down to show him the sites so the decertification in addition to just being an abuse of discretion standard just doesn't meet the the documents that are complained of were produced and provided to the plaintiff it's a temper of twenty fifteen and that was on record dock seventy three nine hundred seventy six seven i know that was something that popped up in the reply that i wanted to address however and in addition to that argument was not raised there was the objection to the affidavits that were put forth one personal knowledge and one other grounds but not not anything  property just to respond briefly to the discovery issue goneril wasn't complaining about discovery have raised the issue of rule thirty seven which is you have a mandatory obligation to produce documents that you're going to rely upon your defense they did not produce those documents what he's referring to is what he produced in september of two thousand and fifteen was his opposition to our original motion for summary judgment at that point in time we filed a motion over two and a half years after the case has been filed and said look i don't have any evidence to support their contention that they're not a debt collector and when they try to come forward with these affidavits in the billing records we moved we objected to them specifically at that point and said wait a minute rule thirty seven requires automatic just exclusion of this so that's where that came from this was not something that it wasn't an oversight on their point to ask for the same material they objected and if used to produce it so that i want to address that one thing i didn't raise earlier and i intended to was the trial court specifically accepted at face value randy up house key suggestion that the state farm did not actively solicit debt collection activity or debt collection cases from the condominium associations but the stieg law firm website actually includes an article authored by mr up house and the name of it is news you need to know collection tools for condominium homeowners associations so on their website mr up house he has authored the article on how to collect these very specific thing wrong with that telling your client how your client can do things it's ok unless you tell the judge we don't do that you can't tell the judge i don't solicit this test i don't solicit this type of work and then put it on your website i did this type of work and here's how you do it and only tell you how i know about that because the substance of what the advice is not to the title you know what i'm saying to you is  collection tools can mean many things short of hiring my law firm in order to i mean law firms do this all the time right i think well i'm not for purposes of summary judgment no ma'am i think that raises a material issue of fact if you say no i don't do this and yet here it is on your website and you're saying this is what i do please hire me i think frankly that's that's a material issue of fact to there was a lot of issue on this whole small vs large in terms of the cases and i will tell you that the cases that they generally cite for the proposition that this is a small law firm usually involves one or two people at most the goldstein case that farm had ten million dollars of annual revenue and only five thousand dollars of revenue from debt collection activity so you had a tiny percentage and that was still sufficient to give rise to a debt collection to be in a debt collector on the issue of whether clements question which is you know you're their debt collector or if that's what you're saying you know if you look at page thirty three of my brief which quotes the garrett case clearly congress must have intended the principal purpose prong of section sixty ninety two a six to differ from the regularly a person may regularly render debt collection services even if these services are not impressed will purpose of his business indeed of the volume of a person's direct election services is great enough it is irrelevant that those services only amount to a small fraction of his total business activity the person still renders them regularly so there's a distinction between your principal purpose is to be a debt collector versus you engage in that collection activities on a on a regular basis your regular basis do you regularly file suits under the f t c p a no man no me and this was the most single most offensive thing i had ever seen in my entire life literally nicole reyes as far as somebody engaging in over overreactive crazy talk of that david e she had a single late payment for one hundred dollars and they blew that up to four thousand dollars while she paid consistently her piece so from one hundred dollars they doubled that every month and kept adding a late fee on late the on late fee and because of the stieg law firms because of the state law firms encouragement