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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

ROBERT LEVANDER Case No. 2:08-cv-14241 

 

Plaintiff, Hon: David M. Lawson 

-vsI.C. SYSTEM, INC., and 

JOHN DOE, 

Defendants. 

Rex C. Anderson (P47068) DOBBS & NEIDLE, P.C. 

Attorney for Plaintiff Daniel J. Ammon (P50923) 

9459 Lapeer Rd, Suite 101 Gregory R. Neidle (P59273) 

Davison, MI 48423 Attorneys for Defendants 

(810) 653-3300 30150 Telegraph Road, Suite 410 

rex@rexandersonpc.com Bingham Farms, MI 48025 

 (248) 723-9511 

Brian P. Parker (P48617) dammon@dobbsneidle.com 

Co-Counsel for Plaintiff gneidle@dobbsneidle.com

30700 Telegraph Rd., Suite 1580 

Bingham Farms, MI 48025 

(248) 642-6268 

lemonlaw@ameritech.net 

PLAINTIFF ROBERT LEVANDER'S MOTION IN LIMINE

 NOW COMES Plaintiff Robert Levander, by and through his attorney, and requests this 

Court limit Defendants IC Systems, Inc. and John Doe from introducing certain evidence at the 

time of trial in this matter. 

 Plaintiff relies upon the attached brief in limiting the evidence to be introduced at trial by 

Defendants. 

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PLAINTIFF'S MEMORANDUM IN SUPPORT OF MOTION IN LIMINE

Intimations as to plaintiff's character, and inflammatory or prejudicial arguments are 

typical in FDCPA cases, even though the only issue is whether defendant violated the Act by its 

actions in attempting to collect a consumer debt. Direct or implied attacks on the plaintiff are 

improper. Fed. R. Evid. 401, 403, 404. 

Deadbeat argument

"One of the most frequent fallacies concerning debt collection legislation is the 

contention that the primary beneficiaries are deadbeats." S. Rep. No. 382, 95th Cong., 1st Sess. 3 

(1977), reprinted in 1977 U.S.C.C.A.N. 1695, 1697. Despite the congressional finding, defense 

counsel typically begins memoranda by claiming that, by bringing an FDCPA action, Plaintiff is 

seeking to immunize himself from the collection process and the natural, legitimate 

consequences of nonpayment of debt. Not only is this immaterial and speculative, but the 

argument is nonsensical. Bringing an FDCPA enforcement action does not immunize anyone 

from the underlying debt, which is a separate transaction. 

"No section of the Act requires an inquiry into the worthiness of the debtor, or purports to 

protect only `deserving' debtors. To the contrary, Congress has clearly indicated its belief that no 

consumer deserves to be abused in the collection process." Bass v. Stolper, Koritzinsky, 

Brewster & Neider, S.C., 111 F.3d 1322, 1330 (7th Cir. 1997). 

Defendant should be precluded from making any "deadbeat" claims, which Congress 

itself recognized as a fallacy. 

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Plaintiff's Motives

The FDCPA relies on and encourages consumers, such as plaintiff, to act as private 

attorneys general to enforce the public policies expressed therein. 15 U.S.C. ' 1692k(a). Indeed, 

Congress stated its unequivocal intent "that private enforcement actions would be the primary 

enforcement tool of the Act." Baker v. G.C. Servs. Corp., 677 F.2d 775, 780-81 (9th Cir. 1982). 

Congress intended that the FDCPA be enforced by private attorneys general. Wright v. Finance 

Service of Norwalk, Inc., 22 F.3d 647, 650 (6th Cir. 1994). 

Counsel for Defendants may attempt to inflame the jury by claiming that Plaintiff 

brought this action "for the money". By denigrating the motives of Plaintiff, Defendants 

contravene Congress' express intent that plaintiff properly has such a motive. 

Defendants' arguments are, of course, meant to reduce the statutory damage recovery. 

Nothing in the FDCPA allows the jury to consider plaintiff's motives in awarding damages. 15 

U.S.C. §1692(k). To determine the amount of damages, the jury considers the nature of the 

violation, the frequency and persistence of the violation, the extent to which the violation was 

intentional, and the number of violations. §1692k(b)(1); Masuda v. Thomas Richards & Co., 759 

F. Supp. 1456, 1467 (C.D. Cal. 1991). 

Thus, Plaintiff's motives are immaterial. 

Existence of the Debt

Defendants are required to comply with the FDCPA whether or not any debt is owed. 15 

U.S.C. §1692a(3),(5),(6). The existence or validity of an underlying debt is not material in an 

FDCPA action. McCartney v. First City Bank, 970 F.2d 45 (5th Cir. 1992); Baker v. G.C. 

Services Corp., 677 F.2d 775, 777 (9th Cir. 1982). Defendant should not be permitted to 

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examine or refer to any other debt (the discredited "deadbeat" argument) or to whether the 

plaintiff owes the debt underlying this case. It is simply irrelevant as to whether defendant 

violated the FDCPA. 

Technical Violation of the FDCPA

Under the FDCPA, there is no such thing as a "technical" violation of the Act. A single 

violation of the FDCPA is sufficient to subject a debt collector to liability. Fair Debt Collection 

Practices Act, §802 et seq., 15 U.S.C.A. §1692 et seq., Foti v NCO Financial Systems, Inc., 424 

F. Supp.2d 643 (S.D. NY, 2006), Duffy v. Landberg (II), 215 F.3d 871 (8th Cir. 2000). A 

consumer need not show intentional violations of the Act by a debt collector to be entitled to 

damages. Fair Debt Collection Practices Act, §802 et seq., 15 U.S.C.A. §1692 et seq., Foti v 

NCO Financial Systems, Inc., 424 F. Supp.2d 643 (S.D. NY, 2006). The Foti case is the most 

current case law upholding the fact that there is no such thing as a technical violation of the Act. 

Therefore, Defendants should be prevented from introducing any evidence at trial 

regarding a technical violation of the FDCPA. 

Plaintiff's Prior Bankruptcy Case

 Defendant intends to introduce evidence related to Plaintiff's prior Chapter 7 Bankruptcy 

case and has even listed Plaintff’s counsel as a trial witness. Defendants can not show that 

evidence regarding the Bankruptcy case is relevant to the defenses in this case. 

 Defendant has already deposed Plaintff as to these matters which did not elicit any 

relevant evidence. Plaintiff merely testified that he relied upon his attorney in scheduling his 

FDCPA claim. The fact that plaintiff filed bankruptcy and discharged this debt is is irrelevant to 

the issues at bar, namely whether sixty six calls in a two consecutive two day period violates the 

FDCPA. 

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Plainitff does not allege that Defendant's improper conduct occured after the impositon of 

the automatic stay. All allegations pled related to events prior to the bankruptcy petition filing. 

As such Defendant’s attempt to introduce evidence of Plaintiff”s bankruptcy is nothing more 

than a veiled attempted to interject irrelevant, predjudicial and inflammatory evidence before the 

jury. 

 The first question in looking at this issue is relevance. The information sought to be 

introduced to the jury by Defendant is not relevant to any of the claims or defenses set forth by 

the parties, therefore, it cannot possibly be crucial to the defense of their case. Not only is it not 

crucial, but it is also not relevant to Plaintiff’s credibility. 

Defendant’s have argued for the court to limit plaintiff’s damages based upon an estopel 

argument, that Plaintiff is limited to values disclosed on his bankruptcy schedules. Now 

Defendants intends to interject these same issues before the jury. Plaintiff has recently found 

case law which supports that absent bad faith, when a debtor makes an unambiguous 

manifestation of intent to seek an unlimited exemption in property, then, absent a timely 

objection, that property is exempt in its entirety, even if its actual value exceeds statutory limits 

and it is no longer property of the estate. Olson v Anderson, 377 BR 865 (2007). See Also 

Fedotov v. Peter T. Roach and Associates, P.C., 354 F.Supp.2d 471 (S.D. NY, 2005), (holding 

that FDCPA claim reverts to debtor if the trustee has not administered at time of bankruptcy case 

closing) and Sparkman v. Zwicker and Associates, P.C., 374 F.Supp.2d 293 (E.D. NY, 2005) 

(holding debtor was not judicially estopped from asserting FDCPA money damage claim even 

where debtor listed the value of the FDCPA claim as zero on her schedules). These cases 

severely undercut the estopel argument in favor of limiting damages and render those same 

issues, which Defendants are attempting to place before the jury, irrelevant. 

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 Therefore, any evidence regarding Plaintiff's prior bankruptcy case should be excluded. 

Attorney's Motives

FDCPA defendants often claim that the plaintiff's attorney's fee recovery is the "engine 

running this suit." That claim is, again, contrary to the intent of Congress that the FDCPA be 

enforced by private attorneys rather than overburdened public servants. Graziano v. Harrison, 

950 F.2d 107, 113-14 (3d Cir. 1991) (FDCPA "mandates an award of attorney's fees as a means 

of fulfilling Congress' intent that the Act should be enforced by debtors acting as private 

attorneys general"). 

Moreover, the argument is spurious where, as here, it is completely within Defendants' 

power to keep Plaintiff's fees to a minimum. Defendants mount a stalwart defense with full 

awareness that they are exposing their clients to a higher award of fees by doing so. McGowan 

v. King, Inc., 661 F.2d 48, 51 (5th Cir. 1981). See also Lipsett v. Blanco, 975 F.2d 934, 941 (1st 

Cir. 1992). They cannot be heard to complain when this comes to pass. 

Therefore, Defendants should be prevented from introducing any evidence relative to the 

perceived motives of Plaintiff's counsel in this case. 

Plaintiff's Counsel and Trustee as Witnesses

 Defendant has listed Plaintff’s counsel and Chapter 7 Trustee Collene Corcoran as 

witnesses to be called at trial. Given that the bankruptcy issue is not relevant, under Olson, 

Fedotov and Sparkman, the Court should sustain Plaintff’s objection to them being called at trial. 

Further, Defendant’s attempt to call Plaintiff’s counsel as a witness is really an attempt to 

disqualify trial counsel. If allowed, this would work a substantial hardship on his client. The 

general rule is that a lawyer cannot appear as a fact witness to a disputed fact in a case for his 

client. See Michigan Rules of Professional Conduct Rule 3.7(a). 

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Rule 3.7 Lawyer as Witness 

(a) A lawyer shall not act as advocate at a trial in which the lawyer 

is likely to be a necessary witness except where: 

(1) the testimony relates to an uncontested issue; 

(2) the testimony relates to the nature and value of legal services 

rendered in the case; or 

(3) disqualification of the lawyer would work substantial hardship 

on the client 

Courts generally disfavor allowing a party’s lawyer to be called at trial for the obvious reason 

that counsel could be disqualified and his client left without counsel of his choosing. 

Unquestionably, the ability to deny one's opponent the services of capable counsel, is a 

potent weapon. Confronted with such a motion, courts must be sensitive to the 

competing public policy interests of preserving client confidences and of permitting a 

party to retain counsel of his choice. Manning v. Waring, Cox, James, Sklar and Allen, 

849 F.2d 222, 224 (6th Cir.1988). 

 Defense counsel has not shown any of the elements of necessity, and the threshold for 

calling a party’s attorney as a witness is high. In Smith v. Arc-Mation, Inc., 402 Mich. 115, 118-

119, 261 N.W.2d 713 (1978), our Supreme Court reversed a disqualification order issued 

pursuant to the predecessor to MRPC 3.7(a), DR 5-101(B), because the party seeking 

disqualification had not shown that the attorney's testimony was necessary. In re Susser Estate, 

254 Mich.App. 232, at 238 (2002). The court in Smith v. Arc-Mation, Inc. notes the dangerous 

territory of allowing opposing counsel to disqualify an attorney by calling them as a witness. 

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Referring to a lower court’s decision on appeal to the Michigan Supreme Court, the Court 

opined: 

[T]he Court of Appeals appear to be saying that if any arguable 

question can be raised regarding the propriety of a lawyer 

continuing to appear in a case, an order can be obtained 

disqualifying that lawyer. That constitutes, in our opinion, a 

dangerous doctrine. It puts in the hands of an adversary the 

ability to force an opponent to change counsel if the adversary 

can advance any arguable grounds in support of 

disqualification. [emphasis added] Under this doctrine, no lawyer 

or firm that participates in drafting an instrument will be able to 

represent the client if litigation results. 

Smith v. Arc-Mation, Inc., 402 Mich. 115, 118 (1978). 

Given the testimony which Plaintiff’s counsel could yield on the irrelevant issue of the 

Plaintiff’s bankruptcy, the Defendant’s bad faith and improper purpose is obvious. Further, 

courts generally see through this tactic. Motions for attorney disqualification should be viewed 

with extreme caution for they can be misused as techniques of harassment. Freeman v. Chicago 

Musical Instrument Co., 689 F.2d 715, 722 (7th Cir.1982); Reed Elsevier, Inc. v. Thelaw.net 

Corporation, 197 F.Supp.2d 1025, 1027 (S.D. OH, 2002). 

 Therefore, Defendants should be prevented from any attempt to call Plaintiff's 

counsel as a witness for any reason at trial in this matter. 

WHEREFORE, Plaintiff Robert Levander respectfully requests that the Court grant his 

Motion in Limine in its entirety to avoid improperly prejudicial and inflammatory references, to 

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restrict the case to the issue at hand (whether defendant violated the FDCPA), and prevent severe 

prejudice to the Plaintiff, and grant any such further relief as this Court deems just and equitable. 

. 

 Respectfully submitted, 

 

 REX ANDERSON PC 

Dated: May 13, 2009 By: /s/ Rex C. Anderson____ 

Rex C. Anderson, Esq. (P47068) 

Attorney for Plaintiff 

9459 Lapeer Rd 

Davison MI 48423 

Telephone: (810) 653-3300 

Facsimile: (866) 813-4195 

rex@rexandersonpc.com 

CERTIFICATE OF SERVICE 

I hereby certify that on May 13, 2009 a copy of the above document was filed with the Clerk of 

the Court using the Court's ECF filing system which will send notification of the filing to the 

following: 

Daniel J. Ammon - dammon@dobbsneidle.com 

Gregory R. Neidle - gneidle@dobbsneidle.com

 __/s/ Rex C. Anderson___________ 

 Rex C. Anderson, Esq. (P47068) 

Attorney for Plaintiff 

9459 Lapeer Rd 

Davison MI 48423 

Telephone: (810) 653-3300 

 rex@rexandersonpc.com

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