please the court and counsel i'm david phillips i'm here on behalf of plaintiff app a lot is bravo you are not confused by these letters were absolutely not i knew that they were illegal collecting the lecture on the fair debt act on various topics to consumers you can almost guarantee what the public court outcome is just by the start usually the bad start is so on so racked up a huge debt didn't pay it and then watch this federal court lawsuit will hear the facts get in the way of that ms bravo was painting her debts through legal aid attorneys they had a deal in place they'd nord the legal aid attorneys and tried to collect directly from her that's what started the first probably lawsuit and the first probably lawsuit was brought in conjunction with another consumer misc over rubeus i don't have an had also worked out a deal through legal aid and was pain or debts and they've nor debt tried to collect directly from her you know the district court's analysis on this was infected by a misperception on what was going on here as the defendant sampling noted in footnote form page twenty of their brief and one of the status hearings a district court judge said well this is like  two neighbors and one neighbor blew the leafs on the other blew the leaves on the other neighbor's lawn and instead of saying hey knock it off they launched a lawsuit well i would say that  you settled the case the case was over with us and your representation of this problem was over with correct i wouldn't agree with that charge well i'd say represented her as to those debts well that if that if the if the settlement was look you were still well the letter came to you addressed to her correct correct did you open the letter yes you didn't give it a hurdle no we called her about it were why did did you call or after you open the letter right but you know what why did you open a letter addressed somebody else because it was it was at my address and we get whale for committal tumors at our communication the principal and more importantly judge in answer your question under the saddle meant the terms are in front of you ok the sudden agreement had me continue to represent her it also had defense counsel continue to represent midland and it was a phone call to the consumer's attorney saying eight let's get this resolved ok here the debt was not owed at all there is nothing to resolve and judge easterbrook in writing the panel opinion intensely specifically noted that there was a concern there that you would cut off pre litigation negotiations you just force the debt collector to go ahead and sue the consumer here that wasn't involved at all debt was over with and let's look at the actual letter itself because it wasn't just pay me pay me pay me i mean although they did use the term payment i know i lost count after eleven times and they said there was a balance to the more important thing was that it also friend and credit report ok if threaten to take an action it could legally take in the future the letter itself which is exhibit to the complaint and also set for th just court opinion said this account may still be reported on your credit report as unpaid there is absolutely incorrect and was a threat against ms bravo that had to be responded to and that's the issue you're not one of being deceived or misled the issue is the debt collectors actions here made someone have to do something because it was a material statement that shows the debt and they may credit report it is something bad is going to happen just what was the motive here the court specifically said that not often would someone send a collection letter to lawyers with whom they have just concluded sort of negotiations in the hope of tricking the lawyers clients that's not at all ok this wasn't mr m cme negotiate with ms bravo with two attorneys involved this is midland credit management when the biggest debt collection companies in the nation it's a publicly traded company or part of it the parent companies publicly traded in the last five years they bought over one hundred twenty billion dollars worth of debt for about three cents on the do that's in the sea of p p consent decree that we said the two so there are they're not flipping one burger they're on the grill they're for flipping millions at a time millions at a time and probably what happened here but we never got to it because the gist of the motion dismissed age is either outside defense counsel didn't bother to communicate with in house counsel which is how it works at midland or in house counsel didn't communicate with the business people the operations people are doing the collections or the operations people just screwed up and didn't bother to send up you know didn't bother to stop the account anywhere along that we're not saying that there was some deliberate conspiracy here to try to trick anybody that's not the issue and it's also not the issue that we flew off the handle and filed a lawsuit we sent three e mails those are in the record we also had phone call saying what's going on here you know a simple response of whoops sorry we're closing it down we didn't do that we got no response so i have to rile up my client say we got these letters have you been getting any other letters have you make any phone calls we need to pull your credit report to make sure there's not a negative credit report we also many letters were told to letters how many phone calls well turned out the hidden mean phone calls and it turned out they hadn't made a negative credit report but we didn't know that when we got the letters and we certainly didn't know that in the month period when we're trying to find out what do you do and white doing it we got no response get deafening silence one of my favorite oxymorons a simple callback would have done something and unfortunately this happens all the time happens all the time if you read the sea of people consent decree they routinely send out for collection debts that are disputed by consumers so one of the things they're barred from doing that they send him out and their stock in trade is they send collection letters and then they file lawsuit they file more lawsuits than any any consumer in the world ever thought to do the fact is that you know about ten times a year i wind up soon  and middling funding over the exact same conduct where the they ignore consumer representation by attorneys where they nor that someone's on a payment plan so it's not unusual it's just they're too big may be reported to the credit report and is unpaid that is one of the threats the other one is that she still owes money and they can collect it from what both of those are in their charge if there's any other questions i'll reserve the talking on behalf of the defendants let me first address the threat theory this is a new theory it's not in the pleadings it was not argued to judge feinerman he didn't rule on it no threat theory was argued the briefs in this case and so as we pointed out in a brief that was waived and it wasn't brought up in the in the reply brief either touch fundamentalists and go on for some peaches about the distinction between a threat yes to so no i understand i'm talking about the threat of the credit report reporting the threat that was alleged in the complaint and the judge feinerman allege was the threat to try to continue to collect on a debt it wasn't i think that's the distinction i making and that are there now there is no threat argue d in the briefs in this court either in the opening or the reply so that's a new theory mr phillips says he wasn't confused and if he wasn't he says he wasn't deceived or misled and if he were not deceived or misled competent lawyer in his position and by that i don't mean to suggest that mr phillips is not a company where i'm just talking about the hypothetical objective competent lawyer the prior lawsuits in this case are not at issue whatever happened to m bravo with middle and before that was dealt with in the settlement and that's all over this lawsuit is about these two letters mr phillips agrees that he still represented m bravo he opened the letters he properly opened the letters he should have any lawyer would have in his brief you argues that it's a different situation because her name is on there it's addressed to him care of her but as mr phillips admits in that situation a lawyer is going to assume  sent to his business is about his business with his client is going to open it the policy that animates sixty ninety two c and also animate sixty ninety two each cases where there is a lawyer involved is not to leave the client in a situation where she doesn't have the protection of the lawyer when she's contacted and of course that did not happen here by sending it to mr phillips the letter he opened it and ms bravo never had to hear about the letter without having her lawyer right there explaining to her what its ramifications w in fact the debt wasn't owed as he well knew because he had settled the case  it's a statutory construction change the talks about what the word consumer means and how in the context of the act and of that section it doesn't mean it doesn't mean lawyer it means consumer and the the holding intensely was that a the principal are the same thing but he drew and he's right but he draws the wrong conclusion from that because the conclusion he would draw from that which is that any communication with a lawyer about a client has to be treated as if it went straight to the client that that's exactly they still have to be analyzed under every but under sixty ninety two c yes i think sixty ninety two c says i think kinsley says that sixty ninety two c does not apply to communications with lawyers that doesn't mean they're because at best or in the generic files or fraudulent activity yes the elderly and the specific threat claim is out and so we're talking about deceptiveness and if there's anything made clear you know no one was deceived about this and when probably heard about it about it from her lawyer who could assure her that there was no validity to it and i don't know what mr phillips said to her obviously but my guess is he told her it was a screw up of some sort is what he told  district court did not consider middlings motive as mr phillips suggest you look at judge feinerman is very careful analysis there's nothing in there the talks about motive or why middleton sent the letter or any of those issues that would have come up in a bonafide air defense if the case had gotten beyond pleadings that doesn't mean that when judge find him and did talk about this passage that mr phillips quoted about well you know  one no one sends letters to try to trick somebody the point of that is not what middlings motive was the point is what would a competent lawyer think when they got there about motive and so in that sense he was sticking to the deceptiveness analysis which doesn't didn't require any consideration of why middling did what it did fact in our brief our opening brief page fifteen we mentioned credit reporting throughout the reply brief mention credibility secondly it's not an issue of deception or knowing that they can't do it it's someone has to do something to stop them just recently versus nationwide credit this court said it didn't matter that the consumer who disputed the debt knew they didn't owe the debt it was that they kept collecting the d