The Investigation into BDF Hopkins, the Foreclosure Mill and Rambo Law Firm(s) in Texas Who are Bounty Hunters and House Jackers; the BDF Law Group, NDEX, Hopkins Law, et al

LIT COMMENTARY

BDF/Hopkins….

Statement: “Who has the sample appellees’ brief in the Fifth Circuit Website? Yep….we do! :)” #5CA @SupremeCourt_TX @JusticeWillett @statebaroftexas #legal #ethics #PublicRelations #armslength #judges #counsel #opposingcounsel #visualization #bias pic.twitter.com/5CWSBi1Gva

— LawsInTexas (@lawsintexasusa) August 17, 2019

On the 14th of August, in the same Federal Court in Houston as former Magistrate Judge Smith resides, the SDTX Federal Court, there was a ruling by Senior Federal Judge Nancy Atlas in Jackson vs US Bank.  You can view and download it HERE.  If you read from page 17, it reads;

TDCPA § 392.101
“In Count Two of their Second Amended Complaint, Plaintiffs allege that Shapiro violated TDCPA § 392.101 by conducting business as a third-party debt collector in Texas without the requisite surety bond. Shapiro responds that it is not a “third-party debt collector” within the meaning of the TDCPA, and thus, is not subject to the bond requirement. Shapiro responds further that even if it is a “third-party debt collector,” its efforts in connection with the attempted foreclosure of the Property are not “debt collections” within the meaning of the TDCPA.  These responses lack merit. ”

Atlas details her reasonings based on Texas law and goes on to find in favor of the Plaintiffs in relation to this part of their lawsuit.

@TXAG We wrote to you on March 16, 2019 about this one question; Who is Responsible for TFC392.101. Silence. We sent a reminder on May 8th. Silence. We emailed Hawkins on July 31st, 2019. Silence. Is that how you treat #SeniorCitizens of the #StateofTexas? Just askin’ #txlege pic.twitter.com/7ypbkJMedK

— LawsInTexas (@lawsintexasusa) August 17, 2019

Hopkins Law, PLLC Does Not Hold a Surety Bond to Perform Debt Collection Services in Texas and The Office of the Attorney General has Refused Senior Citizens Request for Assistance for the Texas Finance Code (392.101) Act that they Oversee. 

Other cited articles;

Debt collection law firms must follow FDCPA in foreclosure cases.

A federal judge has ruled that debt collection law firms are subject to the rules of the Fair Debt Collection Practices Act in cases dealing with mortgage foreclosures.

U.S. District Judge Timothy J. Savage of the Eastern District of Pennsylvania denied a motion by law firm Phelan Hallinan Diamond & Jones seeking to dismiss plaintiffs Tina Collins and Glendale Walker’s FDCPA claim, which alleged the firm failed to cease all collection activity before verifying the debt after the plaintiffs first disputed it.

Savage did, however, dismiss the rest of the plaintiffs’ claims for failure to state a claim for which relief could be granted. According to Savage’s opinion, the plaintiffs alleged that the foreclosure complaint and Phelan Hallinan’s response to their notice of dispute “‘contained false and misleading representations thru [sic] deceptive means in an attempt to collect a debt.'”

Collins and Walker also claimed that the firm threatened to proceed with the foreclosure action without first verifying the debt. The plaintiffs also claimed that the firm falsely represented itself as counsel to Wells Fargo, leading Collins and Walker to believe that Phelan Hallinan was a part of Wells Fargo’s legal department, according to Savage. Phelan Hallinan denied the plaintiffs’ allegations, contending that its notices were not false or misleading and that it was clear in letting the plaintiffs know that it represented Wells Fargo in the foreclosure proceeding.

Savage said the firm did provide adequate verification of the debt by way of a response to the notice of dispute sent to the plaintiffs Nov. 28, 2016.

“It is what happened before Phelan sent the verification letter and after the plaintiffs notified Phelan that they disputed the debt that forms the basis for a viable claim for a violation of the FDCPA,” Savage said. “When the consumer notifies the debt collector that the debt is disputed, Section 1692g(b) requires the debt collector to ‘cease collection of the debt’ until verification is provided to the consumer.

Here, according to the complaint, after Phelan threatened to foreclose on the mortgage, the plaintiffs sent a notice of dispute. Instead of ceasing collection activity, Phelan proceeded to file the foreclosure action.” The case then turned on the question whether foreclosing a mortgage constituted debt collection under the FDCPA. Savage said it is.

“Foreclosure, although legal in nature, is ‘activity undertaken for the general purpose of inducing payment,'” Savage said. “A debt collector cannot avoid FDCPA liability simply by proceeding in rem rather than in personam. Therefore, for purposes of this action, Phelan was acting as a debt collector and engaged in debt collection activity when it communicated with the plaintiffs and filed the foreclosure action.”

Glendale and Collins, who represented themselves, could not be reached for comment. Matthew G. Brushwood of Phelan Hallinan represents the firm and did not respond to a request for comment.

Grady v. Nationstar Mortg.

No. 02-19-00006-CV (Tex. App. Sep. 3, 2020)

c. Other Debt Collection Act Claims

Grady also asserts other Debt Collection Act claims in this suit. First, she claims that U.S. Bank and Nationstar violated Section 392.101(a) of the Debt Collection Act in both Rule 736 proceedings because the alleged third-party debt collectors that they used in those proceedings—the Taherzadeh law firm and its attorneys—could not engage in debt collection because they had failed to file a copy of the statutorily required surety bond with the Texas Secretary of State.

 See Tex. Fin. Code Ann. § 392.101(a) (“A third-party debt collector . . . may not engage in debt collection unless the third-party debt collector . . . has obtained a surety bond issued by a surety company authorized to do business in this state as prescribed by this section. A copy of the bond must be filed with the secretary of state.”); see also id. § 392.001(5) (defining “debt collection”), (7) (defining “third-party debt collector”).

Grady did not allege this claim in the first suit.

But U.S. Bank and Nationstar used the same law firm in both Rule 736 proceedings, and Grady—with the use of diligence—could have challenged its failing to file the required surety bond in the first suit.

Res judicata thus bars Grady’s Section 392.101(a) claim.

Weinstein & Riley, P.S. v. Blankenship

No. 05-14-00902-CV (Tex. App. July 21, 2015)

Appellees argue that the TDCA entitles them to injunctive relief under these circumstances. Appellees rely on four sections of the TDCA. First, they rely on section 392.101(a), which requires third-party debt collectors to obtain a surety bond and file a copy of that bond with the secretary of state. TEX. FIN. CODE ANN. § 392.101(a) (West 2006). Second, they rely on section 392.304(a)(1)(A), which prohibits debt collectors from using a name other than the “true business or professional name or the true personal or legal name of the debt collector while engaged in debt collection.” Id. § 392.304(a)(1)(A). Third, they rely on section 392.403(a)(1), which states that a person may sue for “injunctive relief to prevent or restrain a violation of this chapter.” Id. § 392.403(a)(1). Finally, they rely on section 392.403(e), which states that “[a] person who successfully maintains an action under this section for violation of section 392.101 . . . is entitled to not less than $100.00 for each violation of this chapter.” Id. § 392.403(e). Reading these sections together, appellees argue that they are entitled to injunctive relief because they “established that [W&R] violated section 392.101.”

We disagree. As the Supreme Court has explained, “[p]ast exposure to illegal conduct does not itself show a present case or controversy regarding injunctive relief [ ] if unaccompanied by any continuing, present adverse effects.” O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974).

Appellees also suggest that there is a live controversy in this case because section 392.403(e) provides for statutory damages when someone “successfully maintains an action under this section for violation of section 392.101.” But in this case appellees did not seek  statutory damages, and they cannot successfully maintain an action because there is no continuing injury that injunctive relief could redress.

Finally, appellees also argue that it would “destroy the very essence of the bonding requirements of the Finance Code” if a third-party debt collector can moot a claim like theirs by “filing a bond upon a moment’s notice.” We disagree. The essence or purpose of the bond requirement is to protect consumers, and that purpose is met when a bond is filed in compliance with section 392.101.

Schanzle v. JPMC

No. 03-09-00639-CV (Tex. App. Mar. 11, 2011)

Schanzle argues, in his eighth issue on appeal, that “[n]one of the corporations involved in the myriad of plaintiff corporations hold a debt collector’s bond with the Secretary of State.” Presumably, this argument refers to the bond requirement in section 392.101 of the finance code. See Tex. Fin. Code Ann. § 392.101. Section 392.101 provides that a “third-party debt collector or credit bureau may not engage in debt collection unless the third-party debt collector or credit bureau has obtained a surety bond,” a copy of which “must be filed with the secretary of state.” Id.

For purposes of the bond requirement, a foreclosure lawsuit in which no deficiency judgment was sought against the homeowner does not constitute debt collection.

See Tex. Fin. Code Ann. § 392.001(7) (West 2006) (adopting definition of debt collector found in Federal Debt Collection Practices Act); Crawford v. Countrywide Home Loans, Inc., No. 3:09CV247-PPS-CAN, 2010 U.S. Dist. 84995, at *22 (N.D. Ind., Aug. 16, 2010) (“[A] foreclosure lawsuit undertaken only in an effort to enforce a security interest, and not to obtain a deficiency judgment against the borrowers, does not constitute debt collection within the meaning of the [Federal Debt Collection Practices] Act.”).

The record reflects that no deficiency judgment was sought against Schanzle. We overrule this issue.

Marauder Corp. v. Beall

301 S.W.3d 817 (Tex. App. 2010)

Just as the lack of an interest in the contract in Labrado did not impair the taxpayer’s right to seek an injunction, Beall’s lack of entitlement to any bond proceeds does not impair her statutory right to prevent any future attempts to collect a debt from her without Marauder having a bond on file. The cases cited by Marauder are inapplicable because they do not involve standing conferred by a statute.

(e) A person who successfully maintains an action under this section for violation of Section 392.101, 392.202, or 392.301(a)(3) is entitled to not less than $100 for each violation of this chapter.

Like the statute in Flores, nothing in section 392.403 requires a person to prove actual harm or injury to recover the statutory damages. Thus, there is no relation between the statutory damages and the injury. The purpose of actual damages is to compensate a party. See Kish, 692 S.W.2d at 466. If the jury had found that Beall suffered $100 or any amount over $100 as a result of Marauder’s failure to post a bond, Beall would not be entitled to the statutory damages. The statutory damages of subsection(e) come into play where the jury finds a violation of one of the three applicable sections but finds that the plaintiff suffered no damages or damages in an amount less than $100 as a result of the violation. Because there is no relation between the statutory damages under subsection (e) and the injury, we hold that such damages are not actual damages. Accordingly, we sustain Marauder’s seventh issue.

CA Partners v. Spears

274 S.W.3d 51 (Tex. App. 2008)

The trial court further ordered that Johnson be permanently enjoined from (1) engaging in debt collection until he posts a surety bond with the Secretary of State in accordance with section 392.101 of the Texas Finance Code; and (2) using the name CA Partners as an assumed name in debt collection in the State of Texas.

E. The Trial Court Did Not Err in Issuing Permanent Injunctions Against Johnson.

Finally, CA Partners contends that the trial court erred in permanently enjoining Johnson from (1) engaging in debt collection until he posts a surety bond with the Secretary of State; and (2) using the name “CA Partners” as an assumed name in debt collection in the State of Texas. CA Partners asserts that Spears never requested permanent injunctions in any of his pleadings, nor did he allege that Johnson violated section 392.101(a) of the Texas Finance Code by not posting a surety bond with the Secretary of State. CA Partners further asserts that Johnson is not a “third-party debt collector” as that term is used in section 392.101(a), that he is not required to post a surety bond, and that he has committed no statutory violation. CA Partners argues that the permanent injunctions issued against Johnson are therefore improper.

Section 392.101 of the Texas Finance Code prohibits a third-party debt collector from engaging in debt collection unless he obtains a $10,000 surety bond and files a copy of the bond with the Secretary of State. See TEX. FIN. CODE § 392.101(a)(1), (c). The definition of “third-party debt collector” in the Texas Finance Code tracks the definition of “debt collector” in the Fair Debt Collection Practices Act. See TEX. FIN. CODE § 392.001(7) (“`Third-party debt collector’ means a debt collector, as defined by 15 U.S.C. § 1692a(6)“). The Fair Debt Collection Practices Act provides,

The term “debt collector” means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which  is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.

15 U.S.C. § 1692a(6). Section 1692a(6) further narrows the meaning of “debt collector” by excluding “any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity . . . concerns a debt which was not in default at the time it was obtained by such person.” See id. § 1692a(6)(F)(iii).

Therefore, “a debt collector does not include the consumer’s creditors, a mortgage servicing company, or an assignee of a debt, as long as the debt was not in default at the time it was assigned.” Perry v. Stewart Title Co., 756 F.2d 1197, 1208 (5th Cir. 1985).

Thus, if a debt is in default at the time the assignee acquires his interest in the debt, he is a “third-party debt collector” within the contemplation of the section 392.101(a) of the Texas Finance Code. See TEX. FIN. CODE §§ 392.001(7) 392.101(a); 15 U.S.C. § 1692a(6)(F)(iii).

Eilert v. Turner

81 F. Supp. 3d 529 (S.D. Tex. 2015)

Pending before the Court in the above referenced cause, alleging that pros se Defendant Charles I. Turner (“Turner”), a New Jersey attorney practicing primarily in debt collection, violated the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1602 et seq., in seeking to collect on three consumer debts purportedly owed by Plaintiff Glenn Eilert (“Eilert”), is Eilert’s motion for partial judgment on the pleadings (instrument # 25).

The Court notes that Turner is proceeding pro se here, but since he is a licensed attorney, the Court finds that he may be held to the standard of an attorney with regard to his pleadings.

Here’s a Reminder of How Texas Still Allows its Citizens Homes to be Illegally Impounded and Sold by a Criminal Enterprise

Mortgage Servicing Rights, New York, NY (2019)

In a climate of increased regulatory scrutiny and low interest rates, it is of even greater importance for the $10 trillion MSR industry to meet, compare notes and discuss the latest. Agency MSR Transfers were up 13.9% in 2018 and sales of MSR linked to single-family mortgage backed securities hit $613.46 million last year. There has never been a better time for the industry to meet!

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We look forward to seeing you for another great networking and informative event.

230.REQUEST FOR ADMISSION:
Admit “your expert [witness]”, BDF Partner Brian Scott Engels’ firm failed to provide any #evidence evidence or #witnesses in the @DeutscheBank case which they pursued in their corporate entity name from 2011-2015 against the Burkes. #shellgame pic.twitter.com/YjFtDQtkhf

— LawsInTexas (@lawsintexasusa) August 18, 2019

Admit Stephen C. Porter resigned or retired from BDF due to the “robo-signing” scandal. #fakeaffidavits
Admit Stephen C. Porter was identified by #journalists and in court filings as a “robo-signer”. #fakedocs #RESTORETX #mortgagefraud https://t.co/aml1P2mDND pic.twitter.com/Nhrmrrl9r3

— LawsInTexas (@lawsintexasusa) August 17, 2019