2017 All-Ohio Legal Forum. Negligence Law: The Best Defense Is a Good Offense

Transcription

1 2017 All-Ohio Legal Forum Negligence Law: The Best Defense Is a Good Offense Negligence Law Committee 1.5 General CLE Hours August 23 August 25, 2017 Cleveland

2 Speaker Biographies Daniel J. Myers, Esq. Myers Law, LLC Cleveland, Ohio Mr. Myers received his undergraduate degree from Case Western Reserve University and his law degree from Cleveland State University Cleveland-Marshall College of Law. His professional memberships include the Ohio Association for Justice, Westshore Bar Association, and Cleveland Metropolitan Bar Association. Mr. Myers is the founding member of his firm, focusing his practice on representing homeowners, consumers, small busin ess, and large corporations in a variety of legal matters. He handles everything from small claims disputes to million -dollar class actions and regularly represents clients in civil lawsuits and disputes across Ohio. He focuses his attention on representing homeowners against bad residential contractors, employees with minimum wage and overtime pay concerns, and property owners, as well as commercial contractors in construction defect cases. Mr. Myers is skilled in using Ohio s Consumer Sales Practices Act (CSPA) and Home Solicitation Sales Act (HSSA) to advocate for his clients. In addition, he was named an Ohio Super Lawyers Rising Star in 2014 and Mr. Myers has written advice articles for consumers, homeowners, contractors, and other lawyers, and has been published in the Ohio Association for Justice Trial Magazine. He also frequently conducts seminars and workshops for businesses, consumers, and other attorneys on employment law, consumer law, and construction law topics. For additional information, please visit

3 The Best Defense Is a Good Offense Daniel J. Myers, Esq. Myers Law LLC Cleveland, Ohio Table of Contents The Best Defense Is a Good Offense PowerPoint Presentation...1 The Best Defense Is a Good Offense i

4 ii Negligence Law: The Best Defense Is a Good Offense

5 THE BEST DEFENSE IS A GOOD OFFENSE How to Turn the Tables on Subrogation / Reimbursement Collectors Using Consumer Laws Daniel J. Myers, Esq. Daniel J. Myers, Esq. Myers Law, LLC 600 East Granger Road Second Floor Cleveland, OH DMyers@MyersLawLLC.com FOR MORE INFORMATION The Best Defense Is a Good Offense 1

6 WHY AM I TALKING ABOUT CONSUMER LAWS TO YOU? Negotiating with subro / reimbursement collectors is awful Delay and demanding plan documents Consumer law (FDCPA) gives you an offensive claim in many cases You can use it to negotiate debts lower, or you can file (or have cocounsel file) a federal case against the collector More money for your client Less of your fee that you feel the need to cut down THE FAIR DEBT COLLECTION PRACTICES ACT (FDCPA) 15 U.S.C et seq. Enacted in 1977 eliminate abusive debt collection practices Applies to debt collector attempting to collect consumer debt Third-party collector, NOT original creditor Includes taking assignment post-default Non-business debt family, household, personal purposes Applies to attorneys Heintz v. Jenkins, 514 U.S. 291 (1995) Regularly collects or attempts to collect Actual damages or up to $1,000 statutory damages, plus attorney fees Attorney fees could be tens of thousands of dollars on $1,000 judgment 2 Negligence Law: The Best Defense Is a Good Offense

7 WHEN IS A SUBRO / REIMBURSEMENT COLLECTOR A DEBT COLLECTOR? Sometimes they are, sometimes they are not: Probably NOT if: Collector starts collecting BEFORE debt is in DEFAULT; Collector is trying to collect from TORTFEASOR; Probably IS if: Collector starts collecting AFTER debt is in DEFAULT; Collector is collecting from the INSURED of collector s client; Why Probably? 6 th Circuit has not decided yet likely follow 5 th Hamilton v. United Healthcare of La., 310 F.3d 385 (5th Cir. 2002) COMMON FDCPA VIOLATIONS THESE COLLECTORS CAN ENGAGE IN Relatively easy for a debt collector to violate FDCPA Communication: Failing to give mini-miranda; Failing to give required INITIAL communication disclosures (correctly); Misrepresentation: Claiming a debt exists when it does not exist; Overstating the debt; Post-Dispute Action: Communication (other than filing lawsuit) post-dispute from debtor Communications with debtor s attorney are communications with debtor 6 th Cir. District Split, too (N.D. OH YES; S.D. OH NO) The Best Defense Is a Good Offense 3

8 EXAMPLES OF VIOLATIONS Phone message, phone call, or written letter where no one informs you this is a communication from a debt collector, any information obtained will be used for that purpose. (Mini-Miranda). Demanding payment is less than 30 days from date of first communication Train your staff on these issues because they will see them first. Easy to understand and document. USING THE FDCPA TO NEGOTIATE ON LARGE DEBTS (>$3,000) FDCPA does not invalidate debts! Your clients can only recover actual damages or usually up to $1000 statutory damages, plus attorney fees The attorney fees become the bargaining chip to get more $$ for clients When debt is large, $1,000 statutory damages + attorney fees won t be enough to negate it. You should consider using this to negotiate a lower amount Possible for your client to owe money AND to win FDCPA claim and get money, too. 4 Negligence Law: The Best Defense Is a Good Offense

9 USING THE FDCPA TO FILE SUITS ON SMALLER DEBTS (<$3,000) Based on valuation in N.D. Ohio, some S.D., this is the prime amounts for filing claims Although clients only entitled to up to $1000 usually, attorney fees can be $20,000+, which leads to settlements with clients getting more money Or large attorney fee awards that lead to change of practices Attorney fees do not need to be related to the size of award for client, just outcome for client (win-lose). Examples of statutory damages plus tens of thousands of dollars for fees. Remember Ohio Consumer Sales Practices Act injunctive / declaratory relief Some cases lend themselves to class treatment QUESTIONS? The Best Defense Is a Good Offense 5