____________________________________ 

 : CIVIL ACTION NO. 05-0479 

DONJA SEAWELL : 

On behalf of herself and all others : 

Similarly situated : 

 Plaintiffs : 

v. : 

: CIVIL ACTION 

UNIVERSAL FIDELITY : 

CORPORATION : 

Defendant : 

 : 

 : 

_______________________________________ 

DEFENDANT’S SUPPLEMENTAL PRE-TRIAL MEMORANDUM

 Defendant, Universal Fidelity Corporation (“Universal Fidelity”), by 

undersigned counsel, submits this Supplemental Pre-Trial Memorandum in 

accordance with this Court’s instructions of June 6, 2007 wherein the Court 

asked the parties to submit supplemental memoranda on the issues of who 

decides the Defendant’s net worth for the purposes of possible civil liability 

under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C.A. § 1692k, 

any evidentiary disputes, and a better description of the testimony of the 

various witnesses. 

I. DEFENDANT’S NET WORTH FOR PURPOSES OF DECIDING THE 

AMOUNT TO BE AWARDED TO THE CLASS IS AN ISSUE OF THE 

COURT, NOT THE JURY 

 The Court and not the jury is to determine the Defendant’s net worth for 

the purposes of calculating the maximum award of statutory damages that 

could be awarded to the class pursuant to 15 U.S.C.A. § 1692k. See McCall v. 

Drive Financial Services, L.P, 440 F.Supp.2d 388 (E.D. Pa. 2006); Grandisher v. 

Check Enforcement Unit, Inc, 209 F.R.D. 392 (W.D. Mich. 2002); Kobs v. Arrow 

Service Bureau, Inc., 134 F.3d 893 (7th Cir. 1998). 

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 Specifically, in McCall, the named Plaintiff in a class action case filed a 

motion in limine asking the Court to determine the available statutory damages. 

The McCall court never even considered that a jury was to determine the 

available statutory damages available to the class. Instead, citing to 15 U.S.C.A. 

§ 1692k, the Court held that the maximum statutory damages available to the 

class was $501,000. McCall at 390. The court added, however, that this 

number was merely the maximum available to the class, but that a lower 

amount of damages could be awarded to the class based upon the factors 

contained in 15 U.S.C.A. § 1692k(b)(2). Id. 

 Similarly, in Grandisher, after holding a damages hearing, the Court and 

not a jury, decided the amount of damages available to the class pursuant to 15 

U.S.C.A. § 1692k. Specifically, the Court found that the Defendant’s net worth 

was only $3,890.00 and that the total class recovery would only be $38.90. 

Grandisher at 393. Based upon its determination of the defendant’s net worth, 

the Court decertified the class to allow the members to file individual actions 

against the defendant. Id at 394. 

 Moreover, in Kobs1, the Seventh Circuit was asked to determine if the 

Court or the jury was to determine the amount of statutory damages in a 

FDCPA case. In making its decision, the Kobs Court explained that while a jury 

would decide the exact amount of statutory damages to be awarded to the 

plaintiffs, that determination would only occur after the Court instructed the 

jury as to the parameters of the possible statutory damages allowed under the 

FDCPA. Kobs at 898. It should be noted that while Kobs did not involve a class 

 

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action. Nevertheless, the Court’s analysis of a statutory damage award under 

15 U.S.C. 1692k is still applicable to the current action. 

Once again, the Kobs Court noted that the jury was free to award less 

than the maximum statutory amount based upon the factors contained in 16 

U.S.C. 1692k(b)(1). Thus, the jury’s award would be based upon the Court’s 

instructions as to the maximum recovery allowed in statutory damages to the 

plaintiffs under the FDCPA. 

The jury should ultimately decide if there is a violation of the FDCPA, 

and if so, the amount to be awarded to the class by virtue of the award to the 

named Plaintiff, Donja Seawell. The jury’s decision as to the amount of 

statutory damages awarded to the class, if any, is based upon instructions by 

the Court as to the parameters of an award allowed under the FDCPA and the 

factors the jury should consider when making that decision. In a class action, 

however, the jury cannot make a decision as to the amount of damages that can 

be awarded to the class until the Court makes a determination as to the 

maximum available damages to the class, namely the Defendant’s net worth. 

After receiving instructions from the Court as to the parameters of a statutory 

damage award, the jury is then free to determine the exact amount of the 

statutory damage award, but only within the parameters as defined by the 

Court. 

As such, the Court and not the jury should determine Universal Fidelity’s 

net worth for the purposes of the Fair Debt Collection Practices Act. 

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II. PLAINTIFF’S OBJECTIONS TO DEFENDANT’S EXHIBITS D-4 AND D10 ARE UNFOUNDED 

A. Defendant’s D-4 is identical to D-3, which the Plaintiff raises no 

objection.

Plaintiff objects to the admissibility of D-4, which is the Defendant’s 

collection files, specifically known as “screen captures” for the 321 class 

members, not including the named Plaintiff, Donja Seawell. D-3 is the 

Defendant’s collection file (screen capture) for named Plaintiff Seawell. Plaintiff 

raises no objection to D-3, even though its content is identical to the collection 

files of the other class members (D-4). A copy of D-3 is attached as Exhibit “A”, 

which is essentially identical to all the screen captures that comprise D-4. A 

sample of a screen capture for one of the other class members is attached as 

Exhibit “B”. 

First, there is no question that D-3 and D-4 are relevant and tied 

together. Plaintiff’s counsel is correct that the issue in this trial will be whether 

the “least sophisticated consumer” would be misled into thinking this letter 

came from a governmental entity. The jury cannot consider this issue, however, 

in a vacuum. The jury has to consider this issue in the context of the other 

communications between the Defendant and the class members, including the 

Plaintiff. D-3 shows that the Defendant sent three letters to the named Plaintiff 

Seawell, and various phone calls, before she received the Defendant’s letter that 

is the subject of this class action. 

This same level of prior contact occurred between Defendant and the 

other class members. These prior communications are set forth in D-3 and D4. The Plaintiff will have to convince the jury that the letter in question misled 

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the least sophisticated consumer when she (and the other class members) had 

so many prior contacts with the Defendant. Thus, the collection files of the 

other class members are clearly relevant. 

As the Court may recall, Plaintiff’s counsel stated in open Court on June 

6, 2007 that these documents were produced “many months after the discovery 

deadline.” This was a misrepresentation. The class members’ screen captures 

were hand delivered to the Plaintiff’s counsel on December 8, 2006, 9 days after 

the expiration of the deadline, as soon as they were received by Defendant’s 

counsel from its client. (See Defendant’s letter of December 8, 2006, attached 

as Exhibit “C”). Plaintiff’s counsel did raise an objection to the production of 

these documents in December 2006. (See Plaintiff’s counsel’s letter, dated 

December 13, 2006, a copy of which is attached as Exhibit “D”). Defendant’s 

counsel immediately responded, however, by letter of December 15, 2006. (See 

letter attached as Exhibit “E”). 

First, there was no discovery request that specifically requested the 

collection files for each of the class members. Second, the Plaintiff’s counsel 

has not indicated what discovery he needs regarding these computer printouts. 

As stated before, these are identical to the named Plaintiff’s Donja Seawell’s 

computer printout (D-3). D-3 was an exhibit during the deposition of one of 

Defendant’s representatives, John Jackson, where Plaintiff’s counsel asked 

numerous questions about the symbols and meaning on the document. The 

same information applies to the “screen captures” of the other class members’ 

files as well. 

More importantly, Plaintiff’s counsel never responded to the December 

15, 2006 letter. Counsel never indicated how Plaintiff was prejudiced, or even 

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requested any additional discovery relating to the computer “screen captures” of 

the class members. Counsel waited almost six (6) months before raising the 

issue again, and only at the re-scheduled pre-trial conference. Even though 

Defendant cannot guess what further discovery Plaintiff would need to these 

collection files, Defendant’s counsel would be happy to allow Plaintiff additional 

“discovery” regarding these documents. Considering the trial is four (4) months 

away (October 29, 2007), there is plenty of time for the Plaintiff to explore 

whatever information it needs regarding these documents. 

Plaintiff realizes that these documents undermine her claim that she, 

and other class members, could be misled by the letter in question. Rather 

than allege any real prejudice, or seek any additional discovery on these 

identical documents, Plaintiff is trying to exclude them from the jury by alleging 

a discovery violation. 

B. Defendant’s D-10 is relevant to impeach Plaintiff’s allegation that she 

was mislead by the letter.

Plaintiff also objects to the admissibility of D-10, a copy of a federal 

complaint filed by the Plaintiff against another Defendant, alleging violations of 

the Federal Credit Reporting Act. Defendant intends to introduce this 

document to impeach the Plaintiff about her misunderstanding of the sender of 

the letter. 

The Plaintiff’s counsel complains that the complaint was not disclosed by 

Defendant during discovery. Rule 26(a) states: 

(1) Initial Disclosures. Except in categories of proceedings specified in 

Rule 26(a)(1)(E), or to the extent otherwise stipulated or directed by 

order, a party must, without awaiting a discovery request, provide to 

other parties: 

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(B) a copy of, or a description by category and location of, all 

documents, electronically stored information, and tangible things 

that are in the possession, custody, or control of the party and that 

the disclosing party may use to support its claims or defenses, 

unless solely for impeachment; (emphasis added). 

The complaint would only be used to impeach the Plaintiff on her level of 

knowledge, and her statement about being misled about the sender of the letter. 

Thus, Rule 26 does not even require disclosure. 

 Moreover, the Plaintiff has not demonstrated how she is prejudiced by 

this non-disclosure. Obviously, Plaintiff knew about the Complaint as did her 

current counsel, who represented her in the prior case. Similar to her 

argument of prejudice on the production of the class members’ collection files 

(see subpart A above), Plaintiff does not demonstrate how the non-production of 

a complaint that she previously filed in Federal Court caused any prejudice. 

III. DEFENDANT OBJECTS TO PLAINTIFF’S EXHIBITS P11-16, AND 

WITNESSES FROM OTHER DEBT COLLECTION SERVICES BASED 

ON RELEVANCE. 

Plaintiff’s Pre-Trial Memorandum identifies certain corporate 

representatives of NCO Financial Systems, Inc., Arrow Financial Services, LLC 

and Academy Collection Services, Inc. (witnesses 10 through 12 on Plaintiff’s 

Pre-Trial Memorandum). Apparently, these individuals will authenticate certain 

sample debt collection letters used by these other debt collection services. 

(Exhibits P11 through P16) 

Plaintiff is presumably attempting to use these letters to show that other 

debt collection services do not use an American Flag, or have the term “Office of 

Administration” on its letterhead. Relevant evidence is defined by F.R.Evid. 401 

as, “evidence having any tendency to make the existence of any fact that is of 

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consequence to the determination of the action more probably or less probably 

than it would be without the evidence.” 

These letters (and witnesses) however, have no relevance to the issue in 

this case – whether the Defendant’s letter is misleading. The Plaintiff has 

offered no evidence that these other letters represent any percentage of the 

universe of collection letters used by debt collectors in the industry. In fact, 

Plaintiff has offered no evidence that the proffered letters represent the universe 

of letter even used by these three debt collectors. Whether three other debt 

collectors use an American Flag on one of the various form letters each 

company sends out has no bearing on the alleged violation in this case. 

The issue is this case is whether the letterhead utilized by Defendant was 

misleading or deceptive. Sample debt collection letters used by other third 

party debt collectors has no bearing on that issue. As such, Defendant objects 

to Exhibits P11-16, and the authenticating witnesses identified to support their 

admission. 

IV. WITNESSES (SUPPLEMENTAL DESCRIPTIONS) 

This Honorable Court requested the parties to provide a further 

description of the testimony to be presented by the various witnesses. Most of 

the witnesses that will testify are identified in both parties’ Pre-Trial 

Memorandum. Plaintiff’s Supplemental Memorandum provides an adequate 

description of the mutual witnesses’ testimony, and therefore, Defendant will 

defer to the Plaintiff’s description. To the extent that Defendant’s witness are 

not listed on the Plaintiff’s list, Defendant respectfully offers the following 

supplemental description: 

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7. Michael L. Razzano, Esq. 

 Law Offices of Razzano & Kreutzer 

 8040 Roosevelt Blvd, Suite 319 

 Philadelphia, PA 19152 

Mr. Razzano was Plaintiff’s bankruptcy attorney and will testify as to the 

authenticity of the Plaintiff’s bankruptcy petition, filed after the instant 

class action was filed. This Petition did not list the instant case as an 

asset, which is required under the Bankruptcy laws. Mr. Razzano would 

only be needed as a witness if the Plaintiff disputes the authenticity of 

the petition. 

FREY, PETRAKIS, DEEB, 

BLUM & BRIGGS, P.C. 

 

 BY:______/s/ NWB3521______________ 

 NORMAN W. BRIGGS 

Attorney for Defendant 

 Universal Fidelity Corporation 

Date: 06/07/07 

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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of Defendant’s Supplemental 

Pre-Trial Memorandum was served regular, first class mail, postage prepaid, on 

June 28, 2007, upon the Plaintiff’s attorney at the following address: 

James A. Francis, Esquire 

Francis & Mailman 

100 South Broad Street 

19th Floor 

Philadelphia, PA 19110 

 ______/s/ NWB3521______________ 

 NORMAN W. BRIGGS 

Attorney for Defendant 

 Universal Fidelity Corporation 

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