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10-14509-F ___________________ Roger Shuler, et al, Appellant v. Ingram & Associates, et al ___________________ Appeal from the United States District Court for the Northern District of Alabama District Court Docket No: 2:08-cv-01238-AKK ___________________ REPLY BRIEF FOR APPELLANTS ROGER SHULER AND CAROL SHULER, PRO SE Aug. 7, 2011
Roger Shuler, et al v. Ingram & Associates, et al, No. 10-14509-F
CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT OF PLAINTIFF-APPELLANTS ROGER SHULER AND CAROL SHULER
Pursuant to Federal Rule of Appellate Procedure 26.1 and Eleventh Circuit Rule 26.1, plaintiffs-appellants Roger Shuler and Carol Shuler hereby state that the following individuals and entities have an interest in the outcome of this case: Angie Ingram, Esq. Ingram & Associates NCO Financial Services Laura C. Nettles, Esq. Lloyd Gray & Whitehead Dale M. Van Hoose, Esq. Sessions Fishman Nathan & Israel Wayne Morse Jr., Esq. Waldrep Stewart & Kendrick Hon. Abdul Kallon
TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT ………………….… 2 TABLE OF CONTENTS …………………………………………….…… 3 TABLE OF AUTHORITIES ……………………………………………... 4 TABLE OF RECORD REFERENCES IN THE BRIEF …………………. 5 INTRODUCTION …………………………………………………….….. 6 REPLY/ARGUMENT ……………………………………………….…… 6 CERTIFICATE OF SERVICE …………………………………….……. 17 EXHIBITS …………………………………………………………….…. 18
TABLE OF AUTHORITIES CASES Snook v. Trust Co. of Ga., 859 F. 2d 865, (11thCir.,1988) ………… 8, 9, 14 Augusta Fiberglass v. Fodor, 843 F. 2d 808 (4th Circuit, 1988)....... 10 Bonney v. Roelle, 117 F. 3d 1413 (4th Circuit, 1997)……………… 11 Best Canvas Prods. v. Ploof, 713 F. 2d 618 (11th Circuit, 1983) …. 11
STATUTES Fair Debt Collections Practices Act (FDCPA) ………………………… 6
PROCEDURE Rule 56(f), Federal Rules of Civil Procedure ………………………. 7, 8, 9
TABLE OF RECORD REFERENCES IN THE BRIEF
Brief Page No. 12 12 9, 13, 14 Gregory Stevens Affidavit Angie Ingram Affidavit Opposition to Summary Judgment
Docket No. 60-2 60-5 61
INTRODUCTION Appellants Roger and Carol Shuler (“the Shulers”) file the following reply to appellees’ briefs filed by Ingram & Associates and NCO. In the interest of brevity, the Shulers will not address every issue raised in the appellees’ briefs; most of those issues already are addressed in the Shulers’ original brief. The Shulers’ instead will counter the efforts by Ingram and NCO to present a distorted record of facts and law to this court. NCO, for the most part, adopts the brief and record excerpts submitted by Ingram. The Shulers, therefore, will focus primarily on the Ingram documents, with a brief reference to one NCO-related issue at the end of this reply. REPLY TO INGRAM’S STATEMENT OF THE FACTS Ingram’s “Statement of the Facts” is filled with statements that are not facts at all. In fact, appellees’ own Supplemental Expanded Record Excerpts show that many of these statements are not facts. A few examples: A. Ingram’s “Demand Letter”—Ingram claims that it mailed a demand letter to Roger Shuler prior to calling him. (Ingram brief, p. 4.) Carol Shuler’s deposition, however, shows that Ingram’s own representative admitted to her that no demand letter had been mailed. The Shulers have been represented by multiple attorneys in this matter, and it is unclear to them exactly what
has, and has not, been included in the record. But Carol Shuler’s testimony is attached hereto as Exhibit A, showing that Ingram’s own representative admitted no letter had been mailed. (Exh. A, p. 15, lines 1-5.) B. Ingram’s Phone Call to Carol Shuler—Ingram claims that Carol Shuler called them. (Ingram brief, p. 5.) The record, however, clearly shows that Ingram called Carol Shuler. (NCO excerpts, 60-5, Affidavit of Jann Blalock, p. 2.) Ingram’s own attorney acknowledged during deposition questioning that Ingram called Carol Shuler (Exh. A, p. 14, lines 14-19.) C. Ingram Initiated Communications—Ingram claims that it successfully initiated only one call to Roger Shuler, and it lasted less than five minutes. (Ingram brief, p. 5.) In fact, all of the communications between Roger Shuler (and Carol Shuler, for that matter) and Ingram were initiated by Ingram. Just because Roger Shuler told Ingram that he could not talk at work and agreed to call them from home that evening at a more convenient time for him does not mean he “initiated” the communications. The Fair Debt Collection Practices Act (FDCPA) does not say that a consumer who agrees to return a phone call therefore initiated the communication. And appellees’ own records show that Ingram-initiated communications covered numerous topics, clearly lasting way more than five minutes. (NCO Excerpts, 60-2.)
D. Roger Shuler Never “Admitted” Owing the Debt in Question—Ingram claims Roger Shuler “admitted” owing the debt in question. (Ingram brief, p. 5.) In fact, Roger Shuler’s deposition shows that he had no written notice about a specific debt, and the only information he had about it was from a “disembodied voice” on the telephone. Roger Shuler could not admit to owing a debt about which he had no written information. Again, it is unclear if the Shulers’ attorneys entered this key information into the record. But it is very clear that the statement in the Ingram brief is false, and Roger Shuler’s testimony is attached hereto as Exhibit B.
REPLY TO INGRAM’S ARGUMENT RE: DISCOVERY Ingram contends that the Shulers had a full opportunity to conduct discovery. In fact, Ingram/NCO intentionally stonewalled on turning over discoverable material, and the district court let them get away with it—even though the Shulers had notified the court that discovery issues remained unresolved. Ingram contends that the Shulers raised no discovery complaints until after summary judgment was entered and even goes so far as to state that the Shulers admitted no further discovery was needed; both statements are false, and the record clearly shows that. Furthermore, Ingram notes that the Shulers did not file a motion to compel or a Rule 56(f) motion prior to the entry of summary judgment. (Ingram
brief, p. 11.) Eleventh Circuit law, however, does not require that such motions be filed. It requires only that a party give the court notice that discovery issues are unresolved. The Shulers did exactly that, and the trial court unlawfully granted summary judgment anyway. The Eleventh Circuit standard is clear in Snook v. Trust Co. of Georgia Bank of Savannah, N.A., 859 F. 2d 865 (11th Circuit, 1988.) The Snook court stated that nonmoving parties should not be stonewalled on discovery prior to consideration of summary judgment: “This court has often held that summary judgment should not be granted until the party opposing the motion has had an adequate opportunity for discovery. . . . The party opposing a motion for summary judgment has a right to challenge the affidavits and other factual materials submitted in support of the motion by conducting sufficient discovery so as to enable him to determine whether he can furnish opposing affidavits. . . . Generally, summary judgment is inappropriate when the party opposing the motion has been unable to obtain responses to his discovery requests.” That is exactly what happened to the Shulers. And Snook shows that the Shulers should not be held to certain technical requirements in bringing discovery issues to the court’s attention: “In this Circuit, a party opposing a motion for summary judgment need not file an affidavit pursuant to Rule 56(f) of the Federal Rules of Civil Procedure in order to invoke the protection of that Rule. In
Littlejohn, the court "[o]ut of an abundance of caution and to prevent a possible injustice," held that an affidavit was not required to invoke the protection of Rule 56(f). 483 F.2d at 1146. The court concluded that "the written representation by [plaintiff's] lawyer, an officer of the court, is in the spirit of Rule 56(f) under the circumstances. Form is not to be exalted over fair procedures." Id. Requiring the party opposing a motion for summary judgment to explicitly and unequivocally invoke the protection of Rule 56(f) through the means of an affidavit would provide certainty to district courts. However, the law of this Circuit recognizes that the interests of justice will sometimes require a district court to postpone its ruling on a motion for summary judgment even though the technical requirements of Rule 56(f) have not been met.” Did the Shulers give “written representation” regarding discovery, as required by Snook? Yes, they did, through their attorneys, who are officers of the court. A footnote in the Shulers’ opposition to summary judgment makes that clear. (Shulers’ excerpts, Doc. 61, p. 25.): Counsel for the parties have ongoing discovery disputes which are, through this
date, still attempting to resolve without assistance of the Court. Although counsel for the Shulers does not believe it is necessary to demonstrate the existence of material fact questions in this matter should the Court deem it necessary, the Shulers would request an opportunity to supplement this Opposition with additional material being sought through the discovery process. The extent of acting together, direction, and control is yet to be completely uncovered. Both co-Defendants admit the relationship, and acknowledge that the relationship is documented in written agreements; however, both have refused to provide said agreements to the Shulers, despite formal and informal requests to so provide within and without the discovery process.
The Shulers clearly met the “written representation” requirement of Snook, notifying the court that Ingram/NCO were stonewalling on discovery requests, and the trial court moved forward anyway. This is clear error that must be corrected.
REPLY TO INGRAM’S ARGUMENT RE: EVIDENCE Throughout its brief, Ingram contends that the Shulers failed to provide adequate evidence to support certain claims. First, that is incorrect because the Shulers’ original brief shows that they provided sufficient evidence to overcome summary judgment on numerous claims. But where evidence might have been lacking, it now is easy to see why: Ingram and NCO refused to turn over critical documents in the discovery process. Ingram and NCO clearly seek to benefit from unlawful stonewalling during discovery. Under Eleventh Circuit guidelines laid out in Snook, the Shulers properly notified the court and now must be given an opportunity to gather a complete record before summary judgment is considered.
REPLY TO INGRAM’S ARGUMENT RE: ADMISSIONS Ingram repeatedly contends that the Shulers have “admitted” to certain facts, and the Shulers must be bound by those admissions—even if the record shows that said “facts” are not facts at all.
Any admissions in the record were not made by the Shulers; they were made by Darrell Cartwright and Allan Armstrong, two attorneys who no longer represent the Shulers. It was Cartwright and Armstrong who, without consulting the Shulers, admitted to “undisputed facts” Nos. 9, 12, 13, and 18 in Ingram’s motion for summary judgment. The Shulers’ own attorneys repeatedly made blatant mistakes that undermined their clients’ case, admitting to “facts” that are not facts. Federal law makes it clear that a party is not to suffer because of the incompetence of counsel. Consider Augusta Fiberglass Coatings, Inc. v. Fodor Contracting Corp., 843 F. 2d 808 (4th Circuit, 1988): “When the party is blameless and the attorney is at fault, the former interests control . . .” Also consider Bonney v. Roelle, 117 F. 3d 1413 (4th Circuit, 1997): “Blameless parties should not be penalized for attorney’s mistakes . . .” The Shulers’ attorneys, through incompetence or malicious intent, admitted to at least four “undisputed facts” that the record shows are not facts at all. Federal law clearly states that the Shulers are not to be penalized for attorney mistakes. Ingram contends that the Shulers are bound by the admissions in their pleadings, citing Best Canvas Prods. & Supplies, Inc. v. Ploof Truck Lines, Inc., 713 F. 2d 618 (11th Circuit, 1983.) Best Canvas, however, is not on point with the instant case. In Best Canvas, one party (Ploof) admitted a fact in its own pleading,
and the court found that Ploof was held to that pleading. In the instant case, however, the Shulers were not offering their own pleadings, but rather were responding to alleged undisputed facts presented by Ingram. The Shulers’ attorneys, without consulting them, proceeded to admit to so-called facts that the record plainly shows are not facts. Ingram has presented no case law showing that the Shulers are to be held to admissions in the context of responsive pleadings, on alleged “facts” that did not originate with them; they originated with the opposing party. What are we left with because of bogus admissions in this case? We have a factual record that is not remotely accurate—and that’s just the way Ingram wants it to stay. Consider this absurdity: The Shulers’ attorneys admitted to “undisputed fact number 9,” that “Ingram was retained as legal counsel for American Express.” This is nonsensical on its face. How would the Shulers know the facts behind a transaction that did not involve them? More importantly, appellees’ own documents show that Ingram, in fact, was retained by NCO, not American Express. And this shows that Ingram’s representatives acted fraudulently when they told the Shulers that Angie Ingram was serving as counsel for American Express. For example, NCO representative Gregory Stevens stated in a deposition that NCO (not American Express) referred the account to Ingram & Associates. (NCO excerpts, Doc. 60-2, No. 10.) Angie Ingram, in her own affidavit, admits that her
law firm was hired by NCO (not American Express). (NCO excerpts, Doc. 60-5, No. 2.) Ingram wants this court to focus on admissions that were corruptly made by attorneys who no longer represent the Shulers. Ingram and NCO want this court to avoid the real facts, as presented in appellees’ own documents.
REPLY TO INGRAM’S ARGUMENT RE: FRAUD, INVASION OF PRIVACY, AND TORTIOUS CONDUCT Why do Ingram and NCO want the bogus admissions to stand? Because that’s the only defense they have to the Shulers’ claims of fraud, invasion of privacy, and other tortuous conduct. Ingram repeatedly argues that the Shulers cannot show the elements of fraud because of their attorneys’ mistaken admission to “undisputed fact number 9.” (Ingram brief, p. 25, p. 28.) We already have shown, however, that the Shulers are not to be penalized for the mistakes of lawyers who no longer represent them. We also have conclusively shown that the Shulers, in fact, did not know the nature of the relationship between Ingram, NCO, and American Express. (See footnote from Shulers Opposition to Summary Judgment, cited on p. 9 of this document.) We also have shown—in the sworn words of NCO’s Gregory Stevens and Ingram’s Angie Ingram—that Ingram employees made a blatant misrepresentation regarding
the three entities’ relationship, upon which the Shulers’ relied, to their detriment (seeking counsel of a bankruptcy attorney, enduring severe emotion distress, etc.) These facts—the real facts—show that Ingram is liable for fraud, invasion of privacy, and tortuous conduct. The entire Ingram brief is a gross and pathetic attempt at legal smoke and mirrors, designed to cover up rampant misconduct in the instant case. Ingram even goes so far as to claim that the Shulers’ never raised with the trial court the issue that Ingram could not legally threaten to auction or place a lien on their house. (Ingram brief, p. 23.) In fact, the Shulers repeatedly raise this issue in their Opposition to Summary Judgment. (Shulers excerpts, Doc. 61, pp. 8-10.) This goes to the heart of the Shulers’ claims for fraud, invasion of privacy, negligent/wanton supervision, and more.
REPLY TO NCO’S ARGUMENT RE: VICARIOUS LIABILITY NCO’s brief deals almost exclusively with the issue of vicarious liability, which the trial court correctly found existed between NCO and Ingram. NCO’s arguments fail because, as noted on p. 12 above, its own documents (the affidavits from Gregory Stevens and Angie Ingram) show that the alleged debt in this case was placed with Ingram by NCO. The existence of vicarious liability could not be more clear—NCO hired Ingram & Associates.
If there is any doubt about this issue, the discovery to which the Shulers’ are entitled surely will resolve it. And as we already have shown, based on the Eleventh Circuit’s findings in Snook, the Shulers’ were denied an opportunity to conduct discovery and ensure that a full record is present in this case.
Respectfully submitted, ______________________________ Roger Shuler
______________________________ Carol Shuler
Roger and Carol Shuler 5204 Logan Drive Birmingham, AL 35242 firstname.lastname@example.org
Appeal Number: 10-14509-FF Case Style: Roger Shuler, et al v. Ingram & Associates, et al District Court Number: 2:08-cv-01238-AKK
CERTIFICATE OF SERVICE I hereby certify that a copy of the Motion for Extension of Time in the above and foregoing was duly served on the _________ day of _________, __________, via e-mail on the following:
Laura Nettles, Esq. Lloyd Gray & Whitehead 2501 20th Place South, Ste. 300 email@example.com
Wayne Morse Jr. Waldrep Stewart & Kendrick 2323 Second Avenue North Birmingham, AL 35203 firstname.lastname@example.org
________________________________________ Roger Shuler, Pro Se ________________________________________ Carol Shuler, Pro Se
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