Attorney Frederick William Schwinn's Legal Cases

Debt collection

Meza v. Portfolio Recovery Assocs., LLC, 6 Cal. 5th 844, 243 Cal. Rptr. 3d 569, 434 P.3d 564 (2019)

Feb 15, 2019

OUTCOME: Certified Question Answered

Code Civ. Proc., § 98, subd. (a), is concerned with types of process through which a party can summon a person to appear at trial and inherits rather than alters the basic framework of rules governing ... service of these forms of process. With a civil trial subpoena ad testificandum, personal delivery upon the subpoenaed person is generally required for effective service (Code Civ. Proc., § 1987, subd. (a)). Thus, when an affidavit is submitted by someone who can be directed to appear in person at trial only through such a subpoena, a local address at which the affiant is personally present for pretrial service is necessary unless, the person fits within a recognized exception to the personal service rule, in which case an address that permits proper service upon an appropriate representative will suffice. When an affiant also can be summoned to appear at trial through a notice to attend served on an attorney (§ 1987, subd. (b)), however, either a local address where the affiant will be personally present for service of a subpoena or a local address of the attorney will suffice.

Debt collection

Target National Bank v. Rocha

Apr 29, 2013

OUTCOME: Code Civil Procedure § 98 Declarants must be available for personal service of a Subpoena

Target National Bank filed a complaint for breach of contract and common counts against defendant. Target filed a declaration in lieu of live testimony at trial pursuant to Code Civil Procedure § 98(a) ... . The Superior Court of Santa Clara County (California) admitted the declaration into evidence. Based on the declaration, the trial court entered judgment for Target National Bank. Defendant appealed. Aside from the declaration filed by Target, no other evidence was presented at trial by either party. The court held that the declaration offered by Target did not comply with § 98, as the witness was not available for service of process within 150 miles of the courthouse. The trial court thus abused its discretion in admitting the declaration as evidence. Although the witness had apparently authorized a legal services company to accept service on her behalf, she was not physically present at the company's address and thus could not be personally served at that address. The court rejected Target's argument that defendant could have compelled the witness to attend trial if she had served Target's counsel with a notice to appear pursuant to Code Civil Procedure § 1987(b). The witness would not be bound by a notice to attend trial because she was not a party to the action, a person for whose immediate benefit the action was prosecuted, or an officer, director, or managing agent of Target National Bank. Moreover, the witness was not a resident of California. Thus, the only way for defendant to compel the witness's attendance was to personally serve her with a subpoena. The court reversed the judgment and remanded the matter for a new trial. Target National Bank v. Rocha, 216 Cal. App. 4th Supp. 1 (Cal. Super. Ct. 2013).

Litigation

Johnson v. CFS II, Inc.

Apr 28, 2013

OUTCOME: Treble Damages Awarded Pursuant to California Civil Code § 3345

The evidence in this case demonstrated that CFS knew or should have known that its unfair debt collection practices were directed to a vulnerable senior citizen. Accordingly, in order to "punish and de ... ter" CFS, the Court found it appropriate to treble its award such that CFS was required to pay our client (Johnson) $5,100.00 in statutory damages. Johnson v. CFS II, Inc., 2013 U.S. Dist. LEXIS 61017 (N.D. Cal. Apr. 28, 2013).

Appeals

Cruz v. International Collection Corporation

Mar 08, 2012

OUTCOME: Summary Judgment Affirmed on Appeal

As Nevada law applied and did not permit debt collectors to add nor to collect interest and fees, communications to plaintiff consumer from defendant collection firm and its owner, asserting claims for ... treble damages, interest, and legal fees under California law, were false and misleading and violated the FDCPA. Cruz v. Int'l Collection Corp., 673 F.3d 991 (2012).

Debt collection

Monarch InoVenture Capital, LLC v. Man Wa Amennuno

Apr 08, 2010

OUTCOME: Gambling debts are not enforceable in California

My office defended a client who was sued by a debt scavenger to collect 11 personal checks totaling $30,000 written to Thunder Valley Casino. After a two hour Court Trial and post-trial briefing, the ... Court held that gambling debts are unenforceable in California on public policy grounds. Monarch Inoventure Capital, LLC v. Amennuno, San Francisco Case No. GCG-09-489771.

Appeals

Fontaine v. Superior Court (CashCall, Inc.)

Jun 10, 2009

OUTCOME: Transfer of venue reversed

The appellate court concluded that venue was proper in Santa Clara County and that the trial court abused its discretion in ordering transfer of the action to Orange County. Because the borrower's acti ... on arose from a loan that he obtained primarily for personal, family, or household use, which was a consumer transaction specified in Code Civ. Proc., § 395, subd. (b), and the borrower resided in Santa Clara County at the time his action commenced, venue was proper in Santa Clara County. The court rejected the lender's argument that the venue provision of § 395, subd. (b), applied only to actions against a consumer defendant, or, alternatively, does not apply where the consumer was the plaintiff and one of the defendants was an individual. A peremptory writ in the first instance was appropriate to correct the trial court's error expeditiously. All procedural requirements for issuance of the writ in the first instance were followed. The applicable principles of the law of venue were well established, the relevant facts were undisputed, and the borrower's entitlement to relief was so obvious that plenary consideration of the issues was unnecessary. Fontaine v. Superior Court, 175 Cal. App. 4th 830 (Cal. App. 6th Dist. 2009).

Debt collection

Resurgence Financial, LLC v. Chambers

Jan 12, 2009

OUTCOME: Delaware's 3 year statute of limitation applied

A limited liability company (LLC) sued defendant, alleging that defendant breached the terms of a credit card agreement between defendant and the LLC's predecessor in interest. The trial court entered ... judgment in favor of the LLC in the amount of $ 10,856.54. (Superior Court of Santa Clara County, No. 1-07-CV-095062, William J. Elfving, Judge.) The appellate division of the superior court reversed the judgment. The court concluded that: (1) Delaware's statute of limitations (Del. Code Ann. tit. 10, § 8106) governed the LLC's causes of action because the credit card agreement contained a Delaware choice-of-law clause and the LLC's predecessor in interest was a Delaware corporation; (2) applying Delaware law, the action was barred by the three-year limitations period of § 8106; and (3) Del. Code Ann. tit. 10, § 8117, did not toll the statutory period. The LLC was not a Delaware corporation, did not reside in Delaware, and could not legally have filed the action in Delaware. Instead, the LLC was required to file suit in California. Thus, defendant was subject to suit in the only forum where she was amenable to suit. Applying Delaware's tolling statute to a case filed in California in these circumstances would have been absurd. Because the LLC did not, and could not, file its lawsuit in Delaware, § 8117 did not toll the applicable limitations period under Delaware law. Resurgence Financial, LLC v. Chambers, 173 Cal. App. 4th Supp. 1 (Cal. Super. Ct. 2009)

Frederick William Schwinn's Legal Cases (7)

Meza v. Portfolio Recovery Assocs., LLC, 6 Cal. 5th 844, 243 Cal. Rptr. 3d 569, 434 P.3d 564 (2019)

Target National Bank v. Rocha

Johnson v. CFS II, Inc.

Cruz v. International Collection Corporation

Monarch InoVenture Capital, LLC v. Man Wa Amennuno

Fontaine v. Superior Court (CashCall, Inc.)

Resurgence Financial, LLC v. Chambers