good morning your honor sam leonard representing the plaintiffs in this action i would like to reserve five minutes time for rebuttal from what the plaintiffs are asking the district asking this court to reverse the district court's decision dismissing their c p a claims we are not asking this court to reverse the district court regarding f t c p a liability and how it relates to the statute of limitations i think it's very important to point out what this case is this is not a case of technical f t c p a violations or technical consumer protection consumer protection act violations this is exactly the opposite of that this case is serious violations of debt collection law this case deals with submitting false and misleading declarations to collect on judgments that is exactly the type of conduct that the c p a was meant to regulate to keep a fair market place the defendants are trying to get out of this liability on technicalities the reason that doesn't work is that the c p a doesn't allow for inventive unfair and deceptive conduct to avoid false or lacked supporting documents absolutely so what defendants don't really want out there is that what's false about them is that their schedules schedules of loans that were transferred from the yes i believe that i can't give you the pin site but i can on rebuttal but yes i mean what we're saying is that they're trying to authenticate records the schedules that don't exist now it probably should have been highlighted with stars next to it but that's the reality of what's happening here this is not this is not a case where we're saying you know we're guessing you have insufficient proof this is a case were saying you're trying to say you have sufficient proof you're trying to say you have these schedules and we know you don't let the consent order to say all of the claims or all of the instances they said in numerous numerous instances the f in such personal knowledge and in some cases the complete documentation didn't exist so the consent order was actually carefully drafted just to say only some more in many cases so so what you're saying  understanding is that in all cases in your view and i'm wondering what the evidence was why i wasn't in the complaint or why the allegation was in the complaint because in the complaint the reliance was on the consent order absolutely so the complaint puts forth a plausible claim we're on a twelve b six motion here we're saying that it's likely that this happened we haven't even been able to get into any discovery so there's no basis in the complaint for the glitches douglas's claims is is that correct no that's if it's relying on the consent order which is between november to have fourteen and april th seen absolutely not because we are required to sta plausible claim and what is the basis for the false affidavit and i want take you any longer just point me to the paragraph in the complaint i don't know i'll have to  that is i will call them a collection agency law firm but yes pad not in feel exactly that was one question i had was why is the law firm i guess everything was dismissed right including that at a law firm or the collection agency law for but why would there be a claim against them i mean if it's a law firm even if it's a law firm acting as a collection agency aren't they bound by at the glob legations of a lawyer it concerns me that you could have a claim against a lawyer in these circumstances absolutely and it would concern me as well but they're fundamentally different patent on felix only collects on defaulted claims they're doing it for t s i who only collects on defaulted debts there they have to my knowledge want to turn e and a ton of collection agents right just because you have a licensed attorney who is filing the claims for your collection agency doesn't take you outside the governance of washington's consumer protection act in the c p a or and the collection agency act in the c it just doesn't do it there there of there are two heads there right there a collection agency for stand a law firm as well that collects through the courts in washington laws clear that if your says it would be ludicrous to assume that an entity that collects through the courts could not be governed under washington selection agency act in the c p a they literally use the word ludicrous and the reason is is that the c p a is meant to be a gap filler it's a broad statute that's trying to prevent people from working the system and so that's i believe what we have here i mean keep in mind our duty at this stage of the litigation is plausible claims and if you look at that eric's case eric said it's a question of fact this is a question of fact whether or not a law firms the services they are providing regard entrepreneurial aspects is a ising out of those i think this court said it best in stimson be midland the statute of limitations doesn't change the rights of the parties and mind you i'm not exactly quoting it only affects their available remedies the district court erred and it erred in that it conflated what is a violation of a statute with what is liability under the statute plaintiff's rights under the f t c p a remain the same their remedy being able to go into court and assert those claims and prevail on those claims changed when the statute of limitations ran that doesn't hold true for their per se c p a claims based on those violations that's just not the case the statute of limitations as an affirmative defense and as affirmative defense it does it's an i liability it just says even if there is liability you don't have a judicial remedy and we do have a judicial remedy under the c p a and that continued regardless of the f t c ph statute of limitations running i want to turn your attention to injury so whether you're under the pros or the per se c p a violations that you've alleged or what you've termed the private c violations and all of the and every context you have to prove injury correct absolutely what is the injury that you have that you're going to stablish a claim is done so if we look at the facts they file cases with false affidavits to obtain judgments and in hofmann's case they win and garnished her and they continue to garnish or so hofmann's pretty easy garnishment fees and everything else that they've tried to collect from her that's injury and keep  actually has money actually been garnished from her yes and where is that in the record i will have to get the exact cite the other thing is even if that hadn't occurred under washington c can be paying an attorney to go investigate paying an attorney to look into something and say whether or not this liability actually exists and we know how does that work here when my understanding is none of the named plaintiffs in the case dispute that they got a student loan and none of them are disputing the amount of the student loan absolutely but there's another piece to this in our marketplace you have to know that the person you're suing you is the person actually entitled to collect on that debt and we don't know that you can't you can't allow a marketplace where anybody is allowed to go sue anybody without having to prove that they're actually entitled to collect on that these are not the original defending against a collection action or bringing a c p a complaint did not constitute injury to as a surprise party for this purpose so so only investigation costs maybe of some sort would be covered so what does the record tell us about what costs other then responding to the collection action or prima c p a action or  remember but she was gone and then with regard to the others i mean you have to keep in mind that injury is not the attorney's fees they would incur in the c p a s and that doesn't count we're not saying that it's the defense of the other action the that should have never been brought based on the false affidavit except for sign a late doesn't is contrary to that position is a claim of the more recent one is not and also neither is put off they both say that defense of an action can be injury because injury injury to business or property it is they do not say  defending a collection action is not an injury so where in the nod as it save at defending a collection action is an injury to get the pen site and what i remember from is that it talks about the investigation my dear that you've been arguing and specifically says quote to dispel uncertainty regarding the nature of the alleged debt which is why i was pointing out none of the plaintiffs here seem to be challenging the nature of this debt so how do you even fall under that i guess it would depend on what the nature of the debt a couple of points here the district court didn't dismiss on the injury st off the district court dismissed as on litigation didn't even actually just misses on litigation privilege but it dismissed us on the trader commerce element not being that so st off and then so your position we can't reach that i  regarding plaintiff esther hoffman and they allege esther began making small payments to p n f because she could not afford to defend her case in court is that is that enough for harm i mean you just said that they hadn't made any payments but it looks like they had well i didn't say they didn't make any pay ok so they didn't make payments what's different you mean they didn't well enough of them stopped yeah she didn't she didn't so is the is the allegation here in the complaint that she made payments before trans world started to take action to collect if your honor don't mind i'd like to leave the country because trans world is the only one that proof that one got it i'd like to start with today your honor if i may is also the statute of limitations because i think it's probably the most important and far reaching and the appellant's here as they said are not challenging that reason for that and i'm going to be building up to the walker case because i think that the right square and i'm going to build up to walker it was in their reply brief so we didn't have an opportunity to brief it so i'm going to give a little bit of background here as to why i think that walker case does not apply here and i think the think is very important i believe congress expressly stated that no liability not just any cause of action but no liability should exist after one year if we look at the statute itself fifteen brought in any appropriate united states district court without regard to the amount in controversy or in any other court of competent competent jurisdiction within one year from the date on which the violation occurs when we get to the other state statutes these statutes extending the c p s are all state statutes not federal statutes which of course have supremacy the state statutes have different statute of limitations language with which do not talk about any liability created the congress intended that any liability created under any statute be extinguished after one year and it's well established in considering statutes that we can't add a new language or subtract a new language or change the statute just because we think the the legislature failed to put in what was what was desired do you have any other case that you could point as to w in some of the claims that failed on the merits which i mena the plainest don't disagree that where the underlying claim fails on the merits there is no per se claim and some of those deal with federal statutes like the that we've held even or whatever it was even a cut a federal statute that doesn't have a private cause of action and we've said under some sort of preemption analysis a state liability east at couldn't be based on a violation of the federal statute well your honor i think it may have to do with the language of those specific statute so what i just i just want to know if there is another case i could look at or whether this would be an issue st impression in your question then yes you have a case that is construing the provision of the f t c p a in the way that you're considering it yes plenty of cases we cited the collins case in the line of hand case where the court basically said quote a violation of the f d c p a may serve as a basis for a per se violation of the c p a but time barred claims under the f t c p a a may not support a claim i'm aware of the cases that say that you know there's not a whole lot of analysis in those cases as to why they're reaching that conclusion so my question is are you aware of a case that actually goes through an interpretation exercise on that provision and the f t c p a s and comes out with the result that you're advocating that this is a unique language provision that we have to read them have more analysis those have to do with the pennsylvania consumer protection act and the virginia consumer protection act which are very similar to our own and they basically said that we shouldn't be permitted to circumvent the will of a statute of limitations in allowing them to be used as a per se claim in the consumer protection act of those states would circumvent the will of congress so so there is  well i mean the virginia cases the virginia court of appeals well you're getting eating into your colleagues time if you only am i sorry i had so much more i want to talk about i will say this though we are talking about a lawyer  a law firm as your honor was talking about i can have a driver's license and i don't have to be driving all the time someone with a collection agency license isn't always acting as a collection agency they also have a law license and the specific actions that the my client was taking here was only filing testimony and we've brief the issues on litigation privilege we've which was never argued to your client was never directing actual collections it was all me doing legal work is that is that we are yes they only filed that and i don't want to take away my colleagues time or i will make make one last point and that is that in regard to the consent rehash ground but there are a couple things i'd like to point out right from beginning in the st thing that we haven't talked about yet is a litigation privilege but what we heard from the appellant's here is that the conduct we're talking about has to do with affidavits what my clients alleged to have done wrong is affidavits signing filing affidavits that is testimonial conduct on behalf of t s i in support of the duds so the witnesses i mean that litigation privilege seem to protect the witnesses and the witnesses here whatsoever and what we're dealing with here is a c p a clean that's based on supposedly false affidavits so necessarily if it's testimonial in nature which is all peers are has done here in regards to these affidavits it must follow then that that testimony is privileged because even if the plaintiffs are true correct and that the affidavit her false which we can fight about that later it's a mute and that's what jane j stands for that's what all the cases stand for here but more importantly what we also heard earlier today was that these affidavits are supposedly false because they're trying to authenticate the schedules if we take a look at the actual record that's not what the affidavits are saying what we have here is the appellants are trying to bootstrap their claim to sho and trying to apply a backwards to create some sort of duty that ts i had to perform as far as ordering their accounts and acting that hurt even taking so the after david's and the filing of these actions were all done before the c f p be actually entered the order and it's basically a retroactive application that the plaintiffs are trying to use that c a p b order for and it doesn't work that way because one to see a preview order doesn't make any actual findings are allegations it says in some instances in many cases things like that it's definitely conditional language there is no evidence and there's no plausible allegations that any of the loans of any of these plaintiffs actually had the problems at the see  creditor so you j p morgan chase to the national clee just a low interest that's done by two documents a pool supplement and the positive sale agreement now exhibits to those documents are those schedules but the affidavit themselves don't mention what the schedules are is essentially a spreadsheet of the transferred loans it contains sensitive individual account information like the person's name social security number account data of course that wouldn't be filed in the public record no one's going to submit something to the court that's going to have thousands of people's social security number in this pool of documents that were transferred when we don't we need to focus in on the  simply made allegations there's no evidence that what the c f p be alleged actually occurred to me is i signed the consent order no doubt about that but they denied liability they denied any wrongdoing they denied any misconduct there was no plausible allegations and there was no investigation that came up with any evidence and that well there was an investigation performed by the cia p b but pursuant to the c p b regulations that investigation is confidential and privileged by the c a p v trans world system doesn't have access to what the investigation found for example the c p b can go and interview witnesses or even take depositions of employees in t s i doesn't get access to those documents so what the c f p may have found in their investigation is something conceding anything but why isn't it plausible if they put that allegation in an investigatory document why can't that be evidence of plausibility that's all we have to find right that content of the affidavit says the nd point your honor is the c f p b findings specifically are limited they don't say this was a universal grand scheme they say in some circumstances in some instances in many cases it doesn't define how many and trans world systems is one of the largest debt collectors in the world they service the entire portfolio of fifteen different national cletus in a long trust the scope here is a large so just assume that because maybe it happened in one case at a different time period from one to see if p b was looking and it happened here or it's not plausible well but the different time periods only as to one of the plaintiffs for two of the plaintiffs i believe verse but those two happened after the c a p b investigation relevant to your time and i have one question after me so what i'm trying to you want to say that the consent order shouldn't be a compelling piece of information for us in this analysis and i understand your argument on that the problem that i'm having is that's not the only thing here in all three of these cases your client actually backed off on continuing with collection activities because there were problems with being able to enforce these laws and having the proper documentation and having all that in place and i am i wrong about that i believe you are wrong and with all due respect it is it true that they backed off dollars that's the transferred items we have the loan origination agreement we have the transfer documents what frequently happens in debt collection and there is case law cited in our brief on this is that it's not always d taken to the limits that collectors and their lawyers may not take a case to trial because sometimes the economics of it don't actually warrant it well when you're dealing with relatively small loans the cost of flying somebody a witness across country to attend a trial isn't always warranted so thank you or real quick both the hofmann's and the kims were garnished the kims in particular had money withheld and paid into the court registry it says that so it's actually citing mason v mortgage am in one hundred and fourteen when twenty before you get there forty six are you referencing paragraph fifty three of the complaint i believe so it was a writ of garnishment that was issued you don't allege though that any money was actually taken at this stage of litigation we don't need to allege every fact it is well i mean i think what we're talking about here is harm in your point is it's plausible that if a writ of garnishments issued that the money was taken out i would say it's more than where the money went what about the reference i had to sorry paragraph thirty eight dollars of the complaint is that helpful at all or is that it not because esther was making those payments before there was a collection action injury but just so they had to defend these actions that were illegally brought we argue with false affidavits the defense of that requires investigation by attorneys they all had attorneys that investigated and then defended them in these actions and that is sufficient the investigation as the court pointed out i mean saying that defense in the litigation is an injury but investigation is well there was investigation before we all stepped up and and defended those actions it looks like i'm over here over time thank you very much thank you and the case of