Joseph N. Tucker

Experience

Dismissal of Claims Alleging Violation of the Fair Debt Collection Practice Act

Unifund CCR Partners v. Harrell, Kentucky, Nelson Circuit Court, Case No. 12-CI-00661 (June 21, 2013)

On June 21, 2013, the Nelson Circuit Court in Kentucky dismissed a counterclaim filed by a consumer alleging that Unifund violated the Fair Debt Collection Practices because Unifund requested statutory prejudgment interest in a state court collection suit. In Unifund CCR Partners v. Harrell, Kentucky, Nelson Circuit Court, Case No. 12-CI-00661 (June 21, 2013) Unifund filed a collection suit seeking to collect on a past due credit card account which had been charged off by the original creditor. In the state court complaint, Unifund sought 8 percent statutory prejudgment interest under KRS § 360.010 from the date the original creditor charged off the past due credit card debt. Ms. Harrell alleged that Unifund’s mere request for such interest violated the FDCPA because the original creditor waived its right to collect any interest when it charged off the account.

Upon Unifund’s Motion to Dismiss filed by FDCPA defense counsel Joseph Tucker and Elizabeth Shaffer of Dinsmore, the Court disagreed with Ms. Harrell’s assertions. To the contrary, the Court clearly held that merely because the original creditor may have waived the right to collect contract interest when it charged off credit card debt, did not waive Unifund’s right, as an assignee, to request that the state court award it 8 percent statutory prejudgment interest from the date of charge off.

The Court thus found that “ Unifund's claim for prejudgment interest does not violate the FDCPA” and dismissed Ms. Harrell’s counterclaim with prejudice.

Dismissal of Claims Related to Collection of Debt under the FDCPA

Stratton v. Portfolio Recovery Associates, LLC, 2013 U.S. Dist. LEXIS 167636 (W.D. Ky. November 26, 2013)

On November 26, 2013, the Federal District Court for the Western District of Kentucky dismissed a consumer’s claims for ostensible violations of the Fair Debt Collection Practices arising out of a request for statutory prejudgment interest in a state court collection suit. In Stratton v. Portfolio Recovery Associates, LLC, 2013 U.S. Dist. LEXIS 167636 (W.D. Ky. November 26, 2013), Ms. Stratton alleged that Portfolio Recovery Associates (“PRA”) allegedly violated the Fair Debt Collection Practices Act (the "FDCPA") by seeking in a separate state court collection suit statutory prejudgment interest under KRS § 360.010 from the date the original creditor charged off the past due credit card debt. Ms. Stratton alleged that PRA violated the FDCPA because the original creditor waived its right to collect any interest when it charged off the account.

Upon PRA’s Motion to Dismiss filed by FDCPA defense counsel Joseph Tucker and Elizabeth Shaffer of Dinsmore, the Court disagreed with Ms. Stratton’s assertions. The federal Court clearly held that PRA’s request in the state court collection suit for 8 percent statutory prejudgment interest did not violate any provisions of the FDCPA. The Court held that even if the original creditor waived its right to collect contract interest when it charged off Ms. Stratton’s credit card debt, PRA still had the right to request that the state court award it 8 percent statutory prejudgment interest from the date of charge off. The Court relied on well established Kentucky law holding that , "‘[t]he legal rate of interest is eight percent (8 percent) per annum,’ which runs as a matter of right on a liquidated demand” and the law of assignment establishing that PRA stepped into the shoes of the original creditor upon acquisition of Ms. Stratton’s debt.

While concluding that PRA's request for statutory prejudgment interest from the date that Ms.Stratton's account was charged-off was not improper under Kentucky law, the Federal Court went even further and held that "even assuming the request [for statutory prejudgment interest] violated Kentucky law," such a request would not amount to an FDCPA violation. Applying the "least sophisticated consumer standard," the Court concluded that "the mere request for 8 percent statutory interest under Kentucky law does not constitute a violation of [§ 1692e(2)(A) of] the FDCPA ... As PRA points out, ... its request to the state court [was aspirational and] did not amount to a false representation ...”

The Court further held that the request for prejudgment interest in the state court collection case did not violate 1692e(5) which prohibits a “threat to take any action that cannot legally be taken." The Court held simply that the act of filing the state court complaint was not a "threat" within the meaning of § 1692e(5).

Finally, the Court held that PRA's mere request in its valid state court debt collection action was not an "unfair or unconscionable" act under § 1692f for the FDCPA because the "state court collection action was a lawful vehicle for PRA to recover the debt Ms. Stratton owes."

Allegations of Breach of Insurance Contract

We represented an insurance company in a suit for breach of insurance contract and bad faith arising out of insurance company’s decision not to pay benefits under an occupational accident insurance policy. The case was removed to federal court and summary judgment was granted in favor of the insurance company.

Allegations of Breach of Insurance Contract and Bad Faith

We represented an insurance company in a suit for breach of insurance contract and bad faith arising out of the client’s decision not to pay benefits under an automobile accident insurance policy. The case was removed to federal court and eventually settled at mediation.

Allegations of Breach of Insurance Contract and Bad Faith

We represented a company in a matter where the insurance company refused to defend or indemnify our client in a third-party law-suit arising out of our client’s business operations. We brought claims in federal court for breach of insurance contract and bad faith. The case was resolved prior to mediation for all possible damages awardable under the insurance contract, including attorneys’ fee, costs and interest.

Alleged Violations of Fair Debt Credit Protection Act

We represented a debt purchaser when a consumer brought a class action counterclaim against the client for alleged violations of the FDCPA and Kentucky usury laws. The consumer argued that the National Bank Act did not preempt Kentucky usury laws and that the Dodd-Frank Act no longer allowed federal preemption to assignees. Summary Judgment was granted to debt buyer.

Anonymous Plaintiff v. Cereal Manufacturer

We represented the Defendant's insurer in a suit for $10,000 against a cereal manufacturer for Plaintiff's broken tooth due to an alleged foreign object in the cereal.  The case was settled prior to mediation.

Anonymous Plaintiff v. General Contractor

Plaintiff filed suit against our client, a general contractor, seeking $100,000 for defects in Plaintiff's home related to the use of synthetic stucco (EIFS) material.  Dinsmore & Shohl obtained a dismissal in favor of the general contractor on the basis of the North Carolina Statute of Repose.

Anonymous Plaintiff v. General Contractor

Plaintiff filed suit against our client, general contractor, seeking $1 million for defects in Plaintiff's home related to the use of synthetic stucco (EIFS) material.  Dinsmore & Shohl negotiated settlement with the homeowners on the general contractor's behalf and prosecuted third-party claims against the EIFS product manufacturer.

Anonymous Plaintiff v. General Contractor

Plaintiffs filed a $300,000 suit against our client, the general contractor, for defects in Plaintiff's home related to moisture intrusion and structural defects.  The general contractor in turned filed suit against 12 different subcontractors.  The case was settled favorably for the client after two days of mediation.

Anonymous Plaintiff v. General Contractor

Plaintiff filed suit against our client, a general contractor, seeking $1,000,000 for defects in Plaintiffs' home related to the use of synthetic stucco (EIFS) material.  Dinsmore & Shohl obtained dismissal in favor of the general contractor, individually, which was affirmed on appeal.

Anonymous Plaintiff v. General Contractor

Plaintiff filed a $300,000 suit against our client, the general contractor, for defects in Plaintiff's home.  The claim went through arbitration, settling favorably for the client after a minimal verdict was rendered.

Anonymous Plaintiff v. General Contractor

Plaintiff filed suit for $1,000,000 against our client, the general contractor, for defects in Plaintiff's home. The claim went through a week-long arbitration, settling favorably for the client before a verdict was rendered.

Anonymous Plaintiff v. General Contractor

Plaintiff filed suit for $300,000 against our client, the general contractor, for defects in Plaintiff's home.  The claim went through three days of arbitration, settling favorably for the client after a minimal verdict was rendered.

Anonymous Plaintiff v. Insurance Company

Plaintiff filed a class action lawsuit against our client, an insurance company, seeking coverage in excess of $75,000 for moisture intrusion damage due to defects in Plaintiff's home.  The case was removed to Federal court, was never certified as a class action and was eventually dismissed.

Anonymous Plaintiff v. Owners of Nursing Home

The Plaintff sued our client, the owner of a nursing home, for $100,000 for negligence related to a slip and fall.  The claim was dismissed on summary judgment.

Anonymous Plaintiff v. Plastics Manufacturer

Plaintiff sued our client, a plastics manufacturer, for personal injury and product liability when a chair manufactured by the client broke.  The case was settled at mediation.

Anonymous Plaintiff v. Smoke Alarm Manufacturer

Plaintiff filed suit against our client, a smoke alarm manufacturer, seeking $1 million for the wrongful death of a university student killed in an off-campus apartment fire.  Plaintiff ultimately dismissed the suit with prejudice and no settlement payment was made.

Anonymous Plaintiffs v. Securities Company

Our firm represented the Plaintiffs in two separate suits for fraud, each in the amount of $1,000,000, against a securities company related to investment in a start-up company.  Both cases were settled favorably prior to arbitration.

Anonymous Plaintiffs v. Vacation Resort

Plaintiffs were injured while on vacation at a resort in Mexico.  They sued our client, the Florida company responsible for the resort's marketing and sales.  Plaintiffs claims were dismissed for lack of in personam jurisdiction.

Anonymous Plaintiffs v. Window Manufacturer

Plaintiffs filed a $200,000 suit against the general contractor, who in turn filed suit against our client, a window manufacturer, for alleged defects in the windows.  The case was settled after mediation.

Anonymous Plaintiffs v. Window Manufacturer

Plaintiffs sued our client, a window manufacturer, for $75,000 for allegedly defective windows.  The case was settled.

Breach of Contract and Tort Claims Against Insurance Benefits Company

An insurance benefits company acquired the assets of another company operating as third-party administrator. Shortly after acquisition, the third-party administrator was sued, along with the insurance benefits company for various breach of contract and tort claims. The matters at issue include successor liability, enforceability of arbitration clause and indemnification and indemnity claims.

Cable Television Company v. Owner of Nursing Home

A cable television company sued our client, the owner of a nursing home, for $500,000 for utilizing the cable company's interior wiring for the nursing home's own use.  The parties settled after protracted litigation.

Homeowner v. General Contractor and Siding Manufacturer

We represented the Plaintiff homeowner in a suit for $200,000 against the general contractor and siding manufacturer for damages to the client's home.  The case was settled at mediation.

Hotel Owners v. Painting Subcontractor

Plaintiff hotel owners filed a $300,000 suit against our client, a painting and moisture proofing subcontractor, and against the coating manufacturer for moisture damage to the hotel.  The claim settled favorably for the client after mediation and before trial.

Industrial Contractor v. Various Subcontractor Defendants

Our client, an industrial contractor and supplier, sued the subcontractor for non-payment of $75,000.  The case was settled before litigation was filed.

Insurance Coverage Dispute Involving Allegations of Bad Faith

We represented an insurance company in a suit for breach of insurance contract and bad faith arising out of the client’s decision not to pay death benefits under an occupational accident insurance policy. The case was removed to federal court and summary judgment was granted in favor of the insurance company.

Insurance Coverage Dispute Involving Allegations of Bad Faith, Breach of Contract

We represented an insurance company in a suit for breach of insurance contract and bad faith arising out of the client’s decision not to pay disability benefits under an occupational accident insurance policy. The case was removed to federal court and the matter was resolved at mediation.

Lender Liability in a Commercial Foreclosure

A routine commercial foreclosure resulted in lender liability claims against the bank. Representing the bank, the case was settled on terms favorable to our client.