____________________________________ 

 : 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 PRE-TRIAL MEMORANDUM

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

undersigned counsel, submits this Pre-Trial Memorandum in accordance with 

Local Rule 16.1(c) and this Court’s Order, dated April 24, 2007. 

I. NATURE OF THE ACTION

Plaintiff commenced this class action February 2, 2005, alleging that 

Universal Fidelity violated the Fair Debt Collection Practices Act, 15 U.S.C. § 

1692, et seq (“FDCPA”). Plaintiff contends that on or about September 24, 2004, 

Universal Fidelity wrote and sent to Plaintiff by U.S. mail a collection or 

“dunning” letter (hereinafter “letter”) which attempted to coerce Plaintiff into 

paying a debt. The basis of Plaintiff’s claim is that the letter was on letterhead 

that contained the language “Administrative Office – Record of Notification” and 

also depicted an American flag in the left hand corner of the letterhead. Plaintiff 

alleges that the use of this letterhead was a violation of the FDCPA, because it 

supposedly misled Plaintiff into believing that the United States government 

approved the letter. 

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Jurisdiction of this Court, based upon Plaintiff’s allegations, arises under 15 

U.S.C. § 1692k(d), 28 U.S.C. § 1331 and 28 U.S.C. § 1337. Venue lies in this 

district pursuant to 28 U.S.C. §1391(b). 

II. DEFENDANT’S COUNTER SUMMARY OF FACTS

 Plaintiff claims that the September 24, 2004 letter sent to Plaintiff and 

321 members of the class was misleading because the letterhead indicated it 

came from the “Administrative Office,” stated it was a “record of notification,” 

and contained an image of the American flag. Contrary to Plaintiff’s claims, 

Universal Fidelity, in fact, does have an “Administrative Office”, located on the 

second floor of its Houston, Texas office. Universal Fidelity’s Houston corporate 

office contains an Intellectual Technology office, its accounting office, its 

account receivables office, its legal office and its sales office. All of these offices 

are collectively referred to as Universal Fidelity’s “Administrative Office”. As 

explained by Universal Fidelity’s employees, mail addressed to Universal 

Fidelity’s Administrative Office would properly be sent to Universal Fidelity’s 

Bear Creek Post Office and then sorted to go to the proper office at Defendant’s 

corporate office’s second floor. 

Moreover, the September 24, 2004 letter was not the first contact 

Defendant had with Plaintiff regarding her debt. Defendant first contacted 

Plaintiff regarding her debt on June 22, 2004. Defendant followed up that 

conversation with a letter the next day. Defendant spoke to Plaintiff again on 

July 1, 2004. In response, Plaintiff wrote to Defendant on July 15, 2004. 

Moreover, additional written correspondence was sent to Plaintiff on July 16, 

2004, August 8, 2004 and August 31, 2004. In total, Plaintiff received three 

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letters from Defendant before she received the September 23, 2004 letter that 

she alleges violated the FDCPA. In fact, Plaintiff, herself wrote a letter to 

Universal Fidelity regarding her delinquent account in July 2004. 

 Furthermore, every member of the class, who purportedly received the 

same letter from Defendant, also received the same number of previous letters 

and contacts from Defendant regarding their delinquent accounts. These facts 

show that the letter sent to Plaintiff and the class was in no way misleading or 

gave any sort of false implication to its recipients. Moreover, each of the class 

members would have known the true identity of the sender of the letter in 

question, having received three (3) or four (4) letters from the Defendant 

previously. 

III. WITNESSES

 1. Terry W. Simonds 

 Universal Fidelity Corporation 

 1445 Langham Creek Drive 

 Houston, TX 77084 

 Will testify during any damages portion of the trial 

 2. Ken Sebek 

 Universal Fidelity Corporation 

 1445 Langham Creek Drive 

 Houston, TX 77084 

 Will testify during any damages portion of the trial 

 3. Darryl Hughs 

 Universal Fidelity Corporation 

 1445 Langham Creek Drive 

 Houston, TX 77084 

 Will testify during the liability stage of trial 

 4. John Jackson, Esq. 

 Universal Fidelity Corporation 

 1445 Langham Creek Drive 

 Houston, TX 77084 

 Will testify during the liability stage of trial 

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 5. Chin Ting Liao 

 Universal Fidelity Corporation 

 1445 Langham Creek Drive 

 Houston, TX 77084 

 Will testify during the liability stage of trial 

 6. Liza Michel Aguilr 

 Universal Fidelity Corporation 

 1445 Langham Creek Drive 

 Houston, TX 77084 

 Will testify during the liability stage of trial. 

 7. Michael L. Razzano, Esq. 

 Law Offices of Razzano & Kreutzer 

 8040 Roosevelt Blvd, Suite 319 

 Philadelphia, PA 19152 

 Will testify during the liability stage of trial 

IV. EXHIBITS

 1. September 24, 2004 letter to Plaintiff 

 2. Universal Fidelity Organization Chart 

3. Universal Fidelity’s screen captures (Defendant’s collection file on 

named Plaintiff Donja Seawell) 

4. Universal Fidelity’s screen captures on all class members 

(Defendant’s collection file on each class member identified) 

 5. Letter sent to Plaintiff on July 16, 2004 

 6. Letter sent to Plaintiff on August 8, 2004 

 7. Letter sent to Plaintiff on August 31, 2004 

 8. Universal Fidelity Financial Statements 

 9. Universal Fidelity Balance sheet 

10. Complaint filed in Seawell v. Rosenthal, Morgan and Thomas, Inc., 

04-05259, filed in the United States District Court for the Eastern 

District of Pennsylvania. 

11. Plaintiff’s Chapter 13 Bankruptcy petition filed on February 7, 

2005 

12. Universal Fidelity’s FDCPA & UFC Policy 

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13. Universal Fidelity’s Associate Training Manual 

Defendant’s reserve the right to offer any and all documents listed on 

Plaintiff’s Pre-Trial Memorandum. 

V. TRIAL TIME

 Defendant estimates that the entire trial should last 2 to 4 days. 

VI. LEGAL ISSUES

 A. Liability

The legal issues in this case are quite simple. First, did Universal 

Fidelity’s September 24, 2004 letter, after multiple communications with 

Plaintiff, violate the FDCPA by somehow misleading her because the letter came 

from Universal Fidelity’s “Administrative Office,” indicating it was a “record of 

notification” and containing an image of the American Flag? The letterhead was 

not misleading and even analyzed under the “least sophisticated consumer” 

standard, any consumer would realize that the letter, taken as a whole, did not 

come from an entity affiliated with the government when the letter clearly stated 

it was from Universal Fidelity Corporation, an entity that had previously 

communicated with plaintiff, via written correspondence and telephone calls. In 

fact, in the instant matter, Plaintiff had written to Universal Fidelity, asking 

that all communication be in written format. At no time was Plaintiff mislead 

as to who or what entity was attempting to collect a debt from her. As such, 

Universal Fidelity contends that the letter did not violate the FDCPA as alleged 

by Plaintiff in her complaint. 

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B. Damages

 If the court does find that Universal Fidelity did violate the FDCPA, the 

court still needs to make a determination as to damages. Even if the named 

Plaintiff prevails on liability, the total damages available to the class are 

approximately $3500. 

Pursuant to 15 U.S.C.A. § 1692k, any debt collector who fails to comply 

with the FDCPA with respect to any person is liable to such person in an 

amount equal to the sum of: 

(1) any actual damage sustained by such person as a result of such 

failure; 

(2) (A) in the case of any action by an individual, such additional 

damages as the court may allow, but not exceeding $1,000; or 

(B) in the case of a class action, (i) such amount for each named 

plaintiff as could be recovered under subparagraph (A), and (ii) such 

amount as the court may allow for all other class members, without 

regard to a minimum individual recovery, not to exceed the lesser of 

$500,000 or 1 per centum of the net worth of the debt collector. 

15 U.S.C.A. § 1692k(a). 

The FDCPA contains factors that a jury should consider when making an 

award of damages under the FDCPA. Those factors include: 

(1) in any individual action under subsection (a)(2)(A) of this section, the 

frequency and persistence of noncompliance by the debt collector, the 

nature of such noncompliance, and the extent to which such 

noncompliance was intentional; or 

(2) in any class action under subsection (a)(2)(B) of this section, the 

frequency and persistence of noncompliance by the debt collector, the 

nature of such noncompliance, the resources of the debt collector, the 

number of persons adversely affected, and the extent to which the debt 

collector's noncompliance was intentional. 

15 U.S.C.A. § 1692k(b). 

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 If at trial, Universal is found liable for violating the FDCPA, depending 

upon the jury’s verdict as to an award of statutory damages for the lead 

Plaintiff, the Court may have to make a determination as to how to calculate 

Universal Fidelity’s net worth in order to calculate the class’s statutory 

damages. 

Plaintiff’s allegations regarding Universal Fidelity’s mischaracterizations 

of its net worth have no merit and are not to be decided by the jury. There is no 

evidence in the record that Universal Fidelity’s corporate officers made any 

distributions that were not within the normal course of business. Specifically, 

there is no evidence that Universal’s corporate officers made any distributions 

with the sole purpose to reduce the company’s net worth for the purposes of 

defending itself against FDCPA suits. As such, the trial judge and not the jury 

must make any determination as to Universal Fidelity’s net worth. 1 

Universal Fidelity contends that any determination of its net worth, for 

purposes of the FDPCA, should be calculated according to Generally Accepted 

Accounting Principles (GAAP), without considering the company’s equity, capital 

stock or good will in the calculation. Sanders v. Jackson, 209 F.3d 998 (7th Cir. 

2000); Fry v. Hayt, Hayt & Landau, 198 F.R.D. 461 (E. D. Pa. 2000); Saunders 

v. Berks Credit and Collections, Inc., 2002 WL 1497374 (E.D. Pa. 2002). In Fry, 

the Court, in deciding whether or not to certify a class action under the FDCPA, 

held that the meaning of net worth under the FDCPA . . . was determined to be 

 

1 In the Court’s April 2, 2007 order denying Universal Fidelity’s Motion for Partial 

Summary Judgment, the court held that it would not make a decision as to how to 

calculate Universal Fidelity’s net worth until liability is resolved. At no point, however, 

did the Court indicate that the issue of calculating Universal Fidelity’s net worth was an 

issue for the jury. 

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“book net worth or balance sheet net worth, [citing] Sanders.” Fry at 473. 

Therefore, a decision regarding how to calculate Universal Fidelity’s net worth is 

not a decision for the jury, but rather the Court, based upon statutory 

interpretation, case law and general accounting principles. Under the generally 

accepted accounting principle method, Plaintiff’s potential recovery for the class 

is only $3500. 

FREY, PETRAKIS, DEEB, 

BLUM & BRIGGS, P.C. 

 

 BY:______/s/ NWB3521______________ 

 NORMAN W. BRIGGS 

Attorney for Defendant 

 Universal Fidelity Corporation 

Date: 05/21/07 

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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of Defendant’s Pre-Trial 

Memorandum was served regular, first class mail, postage prepaid, on May 21, 

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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