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Crossley v. Lieberman

filed: February 16, 1989.

MARY CROSSLEY,
v.
ARNOLD R. LIEBERMAN, APPELLANT



On Appeal from the United States District Court for the Eastern District of Pennsylvania, Misc. No. 88-0084.

Gibbons, Chief Judge, Seitz and Greenberg, Circuit Judges.

Author: Gibbons

Opinion OF THE COURT

GIBBONS, Chief Judge:

Arnold Lieberman, an attorney, appeals from a judgment for $2,000 against him in favor of Mary Crossley in Crossley's action under the Fair Debt Collection Practices Act. 15 U.S.C. § 1692 et seq. The dispute arises out of a letter sent by Lieberman seeking payment of $297.79 owed by Crossley to Fleet Consumers Discount Company (Fleet), secured by a mortgage on Crossley,s home. Jurisdiction is based on 28 U.S.C. § 157(c)(1).

Lieberman's August 4, 1986 letter to Crossley is as follows:

MARY CROSSLEY

837 ALMOND STREET

PHILADELPHIA

DATE: AUG. 4, 1986

PLAINTIFF: FLEET CDC

ACCOUNT # 26486721

AMOUNT DUE 297.79

Dear Sir and Madam:

The above matter has been referred to me for collection. I am obligated to demand immediate payment of the full amount of the plaintiff's damages and costs as stated above.

Unless I receive payment in full within one week from the date of this letter, I will be compelled to proceed with suit against you. This can result in the listing of your property, either Real Estate or Personalty, for forced Sale by the Sheriff, after appropriate legal proceedings have been concluded.

Such action will result in additional expense to you for the Court fees and Sheriff's costs.

Full payment should be in my hands within one week. You may telephone me for additional information.

Very truly yours,

s/ARNOLD R. LIEBERMAN

ARNOLD R. LIEBERMAN, ESQ.

Crossley had not received any prior demand from Fleet. She was then a sixty-eight year old widow who had resided in her home since 1940. She was then employed as a noon-time aid for the Philadelphia School Board. On receipt of the letter, Crossley telephoned the number on the letterhead and spoke to a man she believed to be Lieberman. When she said she could not pay the entire bill, the man responded that she should sell her house and become a "bag lady." Interpreting the letter as a threat to sell her home, she reacted in panic. She quit her part-time job with the School Board so that she could cash in her modest pension contributions of approximately $800 in order to pay off the $297.79 debt.

On May 15, 1987, Crossley filed an action to adjust her debts under Chapter 13 of the Bankruptcy Act. 11 U.S.C. § 1301 et seq. An adversary proceeding was then filed on her behalf under the Fair Debt Collection Practices Act. 15 U.S.C. § 1692 k. Lieberman was duly served, but did not answer. Crossley moved on July 22, 1987, for a default judgment. A default was entered against Lieberman and a hearing on damages was scheduled for August 12, 1987. On August 25, 1987, Lieberman finally responded, opposing the entry of a default judgment, and the bankruptcy court vacated the default. Trial was scheduled for October 13, 1987, but it was postponed in order to permit Lieberman to take Crossley's deposition at her home. She was deposed on October 30, 1987, and on November 5, 1987, her attorney moved to admit the transcript of that deposition in evidence in lieu of her live testimony because her poor health precluded her attendance at trial. Lieberman objected, but the motion was granted, subject to the right of Lieberman to take a supplemental deposition of Crossley on or before November 30, 1987. The trial was continued until December 15, 1987. Lieberman did not take a supplemental deposition and did not appear for the December 15, 1987 trial date. The trial was then continued until January 6, 1988. Lieberman's counsel first agreed to produce him at trial, but just prior to the New Year's weekend withdrew that offer. Crossley's counsel made unsuccessful efforts to subpoena Lieberman. On January 6, 1988, Lieberman did not appear.

The trial went forward on January 6, 1988. Crossley's counsel put in evidence her deposition, certain discovery responses, and Lieberman's testimony in Littles v. Lieberman, Bankruptcy No. 87-00092S, Adversary No. 87-0247S, and a certified record of the Philadelphia Court of Common Pleas reflecting Lieberman's debt collection activities. On February 2, 1988, the bankruptcy court proposed findings of fact and conclusions of law recommending judgment in Crossley's favor for $500. Lieberman filed objections to the recommended findings. The ...


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