ron do you know there's case law on lots of them all around the place including in our circuit all over the place what line of reasoning do you advocate and why your honor i would overlap somewhat generally speaking they deal with entirely different matters the f t c p s a deals with debtors and debt collectors it doesn't apply to creditors at all now do we to apply his logic do we then look at the at at what happened at the specific communication and compare what what in other words the letter relating to discharge proceeding that could be brought and and attach notice under the code we look at that and then match that up with the bankruptcy code and see whether there's a conflict or what you would do you of the bankruptcy code does not govern this type of notice at all there is nothing in the mackesy code or the rules that speaks to the content of this type of notice and twenty four notice your honor two thousand and four provides for the ability there should be cause of action to sue someone for noticing a rule two thousand and four proceeding that there really entitle you know it no your honor only if you do so in a way that's improper only if only if such notice violates the f that attended is compelled at a two thousand and four examination under our local rules in new jersey to send a subpoena and the the the f t c a standard is the we sophisticated debtor notice of examination accordance with f r animated in in a bankruptcy proceeding typically your honor in a bankruptcy proceeding that is not it is only under certain circumstances such as this one of the there are many different reasons for the f t c and the findings or are there findings within the statute about abuse of that collection practices in this case we're talking about a couple who when reviewing the documents would have believed that they had to take a day off from work and travel to new york and produce a whole bunch of  saying that because that these two statutory schemes do not conflict at all and we therefore never really look at what happened to see if it's in conflict but you take the language in randolph that there is no stated legislative preemption in either of startled to know that he or she was without the ability to deal with a violation of a rule or procedure governing a two thousand poor notice or subpoena if one occurred in a situation where the application has been made to of accuracy court and that the court could review the documents to see whether they were appropriate that is a different context from what we have here where none of these none of the documents were required to be submitted to the bankruptcy court before being sent action purposes which you say is required by the c p s and actionable of it's not included is there any way in which including it would expose the creditor to a violation notice indicated that it was not an attempt to collect a debt it also could provide this it indicated that it was not the time to collect a debt for the purposes of the automatic so there's nothing that says you can put in this notice that they're not than trying to directly collect the debt but the f t c p a language as i understand it would require them to say this is an attempt to collect that i think the point of that is not so much to say that the debt collectors attended to collect a debt but that any information will be used for that purpose and i think that there's a that there is a distinction between acknowledging that the debt collector in this case is in the process is in in the process of selling it in connection with the collection of any debt which is what the standard is and the actual attempt to collect money or get money from the consumer i guess i'm worried about your distinction because there's case law that says that attempts to negotiate or resolve or settle are attempts to collect  so how can the creditors say this despite all appearances to the contrary and despite the fact that at the end of the day i want your money this is not the time to collect that you're on right now the way to get the money is to challenge just hard to build your own i think that the the cases with respect to the autumn i sit and be very specific whether they're clearly trying to tip and threatening some sort of action or trying to collect it not so much trying trying to  is it off because he doesn't want to be a cause of action for it that would be only on the f t c p s i'm so yes roger i agree with that so is i get back to my question is there any instance in which you would say that there would be a conflict between the two so that i think there are instances in which there might be a conflict i think that in the instances in which those arise could be addressed this doesn't happen to be one of them is the at the back of your not about the rules don't apply to apply the second question is once and i did bankruptcy respect to that whether to settle this or whatever comes before the court that if the if the debtor were to then say oh yes and write a check that that's not going to happen because if this debt is not just charge of all it's not the kind of harass harass force money to be paid over that happens outside the bankruptcy doesn't the context of the bankruptcy really matter here it does run of the i would say that the approval of the payment of the money only occurs if there's either reaffirmation agreement or a settlement with respect to that ends up being right of which right that is not always happen if in the context if if well if something is going to be paid to this creditor outside of a plan or outside of a distribution under you know after seven that the court some is going to have to ok that this is not something where they're just going to write a check because they don't receive phone calls you're in fieri you're correct in practice i wouldn't necessarily say so i think  wow i wouldn't want to go for the bankruptcy judge and say that i did that but no nor would i go ok we'll hear from you on ripple and my name is susan johnston i'm a member of the firm weinstein and riley representing the lease in this case if i had a card services and the law from one side reilly and just to pick up on the last comment your honor neither would or no circumstances would my firm on behalf of any of our clients whom we represent across the country engage in the settlement with a prosecutor that we did not bring to the court for approval and that would never happen well by the same token if you believe there's a well i have a couple of different answers to that your honor one is that we have found it useful in many courts many bankruptcy courts have found it useful to engage in pre filing discussions with the opposing counsel factors that the courts have permitted us rely upon to prove the subjective intent factor so that these pre filing conversations are often useful in the dignifying either cases where we cannot prove intent because they give the facts that we need to know  not acting as a debt collector when will we suppose that or read it that way i don't think so your honor because i think that the language of the letter that we sent makes it very clear that it is not a demand there's nothing in there about it land it doesn't say that he says that we your honor there is case law that says that i'm not aware that it says that in the context of a five hundred three complaint within the country within the bankruptcy case in other words if you write a letter before anybody's file for bankruptcy and you say those things then yes i think i would have to agree with your honor that there is case law that says that is a that but that is an aspect of that collection i do not agree i have not seen and i have not seen cases in the five twenty three context that say that it is a violation of the f t c p a a for a creditors lawyer to write a letter to the debtors lawyer saying we believe that we may have a five twenty three day complaint we'd like to talk to you about it make that discovery but in the meantime if you want to resolve it we're happy resolve it so it's a conversation that is often productive in and resolving these things some of the time we don't sue people because of hardship some of the time we don't sue people because we receive information from the debtors who are in this country is it you're drawing a distinction between a letter that you would send to a voyeur on the one hand a letter that said merely to a debtor i'm not necessarily drawing that distinction but i do think it's important that in this case the letter went to position also in this you know the other thing is the fair debt collection practices act provides remedies that could bring money into the state and you know in the bankruptcy there's nothing wrong with that and i think that you know some money comes into gathered could be used as part of a dec lection effort or would that expose you to a violation of the automatics you are i think it was certainly exposed to a lawsuit not unlike this lawsuit i also think it would not be to prove fraud and not just charge ability is different from the category of information there may be some overlap but generally speaking what you're looking for is a pattern in practice of charges employed in employment income anticipation that sort of thing  and i think and so in answer to your question i don't know that it would expose us to liability because but i think it might expose propose lawsuits for sure and it might expose a liability if the court but that what we were actually trying to do is collected that instead of trying to determine just surgically so i think that risk is there if i understood the argument that opposing counsel made it was that in order to avoid this kind of damned if you do damned if you don't situation you should have put language in your notice of the two thousand poor examination in the nation to talk something to the effect that this is not information and effort to obtain information that will be along the lines of the seventh circuit safe harbor stretch buzzers written several decision saying i can't let you do it i can tell you if you do it this way you won't be liable in my court for that the c p a violation if the court were inclined to say something along the lines of if you're going to write a letter to a debtor and or his counsel in a chapter seven in a in a bankruptcy context in which you're seeking and in which your ultimate goal is to obtain a verdict that the judgment that that is not destroyed people if you include this language along the lines of sure under just indicated then you would not be liable you know i can't quarrel with that because what i want to do is achieve clear standards that we can comply with so these are not subject to lawsuits is it true it is language that the information is not going to be sought as part of a collection effort i think it's true right because i think there's an important distinction to be made between sued on a death suit on account of a lawsuit on a contract that you bring in state court on the one hand and an action to determine the not discharge ability but that in a bankruptcy court on the other hand i think that's really important and i think it's really important to separate those concepts in that you know enough i don't know i don't know how to char sense it's not true because of course at the end of the day what we want is a determination identical not to startle so that we can correct it so in that sense it's not true but it's a real difficult one to walk in methodism it was just an opportunity for you on behalf to induce is pain and now no sorry go ahead i'm sorry well it's not painting that i mean if in response to this letter the lawyer says hey we should pay this now maybe remedy it gives all creditors remedies to examine the circumstances surrounding the in currents of the debt and if if the creditor believes that the debt was incurred in violation of such about twenty three of the bankruptcy co we have a remedy which is that we can sue for not discharge ability and then the debtor coming out of the proceedings going to have to pay that he's going to have to pay that debt now we have the right to do that so we have a we have an absolute right under the bankruptcy code to bring that lawsuit avoid it your honor this is a this is a also a very important point is far from from my perspective one possible bit of this is the court will rule that we can have no pre filing communications with the debtor that would put a burden on creditors like my clients that i'm not aware shared by any other creditor in any other context in my explain experience i spent most of my time they see career practice in big firms represent large companies in b require you to pick up the phone instead of sending a letter what i don't and we do that sometimes to your honor i mean the point is the point the point it's really important but i don't i should step back for just a minute and say that i am not defending the rule two thousand and four notice i don't disagree that there were some problems with it and obviously the court question it but i would say the rule two thousand and our subpoena is a that's available to me in the bankruptcy code and that if you and that there are therefore re improper two thousand and four subpoenas in the bankruptcy court that they have cheap they got that they got aquash i also agree with your honor that if we did something really wrong the court could do something about it and but i didn't why should we not have let the debtor have a bankruptcy court would view the kind of deliberate pattern in practice that is alleged in this complaint as something that should be resolved with a slap on the wrist i really don't think they would do that i just want to follow up with two other points are you agree that this is notice of two thousand and four examine the pattern impact the practice inventor of the court when you want to obtain discovery under rule two thousand and four is to is to serve a notice of examination hundred rule to doesn't for if you have to enforce it against a third party you have to get a subpoena so you have to get a bankruptcy court order authorizing you to do it so if there was a failure to comply with rule forty five's requirements what you're saying is that it doesn't that there's first of all it was never served on the the debtors it only went to the governor's counsel and i do believe i mean and the fact that only went to bettors counsel means that it was in effect a notice as but that this or even the notice sorry my point is not so much that there were not mistakes in it because i you know please your honor as mr mitchell if he was the one who signed it i mean obviously i'm not attorney who signed it but i wouldn't i wouldn't have written it that way just just so you know i want to do it better that but but but my point is that because we are entitled under the bankruptcy code and the bankruptcy rules to send to to engage in two thousand and four examinations my point is that the remedy the remedy is under that is under the bankruptcy court rules in that you don't need this you know a year later when they've already gotten the motion quad they really gotten this in a quasi year later they sue us saying that wasn't there at the time this was done i didn't write it i didn't sign it if i and the record doesn't show what was intended by the lawyer that i mean this was a motion to dismiss so the record is relatively undeveloped but that my belief i mean if i had to guess not belief is that what he was trying to do opposing counsel two things one is the kinds of facts that he might want in order to resolve this either formally or or amicably and to let you know i know what a rule two thousand and four is you know i can but he didn't attempt  enforce it so there was absolutely no prejudice or damage suffered by the debtors in this case i mean i assume they saw it because they want to get it to one more question and that your argument that this was simply a discussion that you were trying to initiate and that the there was no need to put in mind would the if the c p a required language that the information could be used for the purpose of deck lection because you were going to use it for that purpose that's correct but if you had put in the language that that plaintiff counsel urges something to the effect that this information will not be used for debt collection purposes would you in order to avoid a conflict with the automatic stay would you be precluded from ever using any of the information gathered if settlement faile in pursuing this charge ability well you might be around just charging you might be and you certainly would face that challenge from them is a technical matter under rule two thousand and four year that the information that you get may or may not be admissible in the underlying lawsuit so letters because i don't think that we are trying to collect that in these letters i think if we did put it in the letter it would expose us to two hazards down the road in the ultimate lawsuit and if you don't put it in a letter you're obviously subject to suit under the f t c p a because here you are and less one i have one last question would you advocate an analysis along the land lines of randolph by finding that indeed the conflict exists you know i think your honor that that would be the conservative approach i think that is i read these cases there is there does seem to me to be an evolving trend the lower court some of the lower courts are saying that when the claim would require specific discussion determination analysis of  resolve this and i'm not i'm not sure that the case law has developed enough for the court to be comfortable with that i mean we have sporadic incidents of examples here in the you know five the discharge injunction reclaim context maybe three sixty three you know maybe in my case five twenty three we have a number of different areas spots on them that we're courts have said if the c p a remedies should not be important but i'm not sure that i would i'm not sure the court would be comfortable going there at this point given the relatively undeveloped acting for but if you're act well then maybe maybe reliable in there not my point is my client if i ate a hard services is not a debt collector it's either the successor in interest to the original holder in the in a bank or which makes it a creditor which makes it a creditor in it's not illegal for a creditor so but the lawyer sent them as well or as it is a debt collector on her i'm not i'm not arguing about that your honor but but but but i think the the allegations in the complaint there is an allegation  very least if they occurred services should under no circumstances have any liability here i would also obviously submit for all the above reasons that neither should not offer because the letter was sent to a lawyer which we thought was justified the letter was you you know i have a few points i'll try to try to hit them briefly one thing these to be clear is that the standard is in connection with the collection of any that it is not that you're specifically trying to collect that is the the standard is much broader that then than please pla please pay now even though that's what that's what of the letter essentially is encouraging doing soon we write the opinion your way how would it read what what would we say well that it that which is the nondestructive to go if if they had brought the case and it turned out to be inappropriate then they would be potentially liable for costs and attorney's fees that are five forty three d i think that's one of the reasons that they don't bring cases initially is that particular in this case they really didn't have a basis for it there was no basis at all for they don't know i mean if they if they have the timing and the withdrawal of the money that's you don't know and rather than just bring the case they can notice lawful two thousand and four examination that's the point is that the communications if there's going to be communications either with the debt or of that a couple they must be truthful they must be lawful they must be accurate but they can't do things like tell the lawyer we censor this this documents the case which had seven days that could have been converted to a chapter thirteen case had it been converted in fact this case would have stayed in the bankruptcy bankruptcy court because it would have flowed to the for the benefit of the state it was just that the discharge was entered before we were able to resolve this