Joseph N. Tucker

A well-respected horse trainer in south Florida sold a sport horse. The buyer claimed the horse had an undisclosed condition resulting in the failure to perform for the intended use.  After minimal discovery and motion practice, Dinsmore obtained dismissal of the lawsuit for its client.

We represented our clients through the complex negotiations of a binding membership interest purchase agreement, metal supply agreement, and associated agreements involving intellectual property rights.  Our clients, UACJ Corporation and its U.S. subsidiary, Tri-Arrows Aluminum Holding Inc., opted to sell their interest in Constellium-UACJ ABS LLC, a Bowling Green, Kentucky joint venture engaged in finishing automotive body sheet, which it previously held with their joint venture partner, Constellium N.V. and Constellium U.S. Holdings I, LLC.  Our team assisted with the negotiations resulting in the termination of the membership agreement, working with owners and representatives in Tokyo, Paris, New York, and Louisville.  As part of the deal, we also assisted with the negotiations of a metal supply agreement ensuring that Tri-Arrows Aluminum, also our client, would remain a supplier of cold coil to the Constellium Bowling Green plant for up to five years.

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."

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

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.