business legal research
fhdcaip
baud_3470.docxThis research project involves a legal collections proceeding in small claims court in Toledo, OH. Discovery standards are relaxed and less rigid in small claims court. However, precedent, stare decisis and common law legal standards apply.
In other words, there may be statutory and case law that provides precedent to legally support defendant in this matter.
Facts:
Defendant has at least 8 red light traffic tickets in the city of Toledo. Administrative hearings were scheduled and “believed to be held” for each violation. Default judgments were rendered against the defendant for red light camera violations related to running red lights and speeding.
Defendant did not attend the administrative proceedings in these matters because the administrative proceeding would have still resulted in the tickets being given and judgment rendered against the defendant.
Defendant believes that the Plaintiff must prove that the underlying debt exists to actually win the case and collect on the debt.
The plaintiff will thus have to prove that defendant actually broke the law and ran the red light(s) or sped through the intersection(s).
On at least three separate occasions, the driver of the vehicle was in fact the defendant’s spouse.
Issues to research:
1. Does the Fair Debt Collections Practices Act apply to this legal issue? Defendant believes that the FDCPA only applies to consumers, but is there any exception to the consumer rule?
a. Yes or no?
b. Give a one-sentence answer justifying your answer in 1.a.
2. Is there an Ohio Revised Code that specifically provides for spousal privilege?
a. Yes or no?
b. If yes above, what is the code reference?
3. Is there a legal case in Ohio that is considered the seminal (reference) precedent that provides for spousal privilege?
a. Yes or no?
b. If yes above, what is the case name?
4. Does Ohio expressly state that in a collections proceeding that the Plaintiff must prove that the debt is owed?
a. Is there an Ohio statute regarding debt collections? Key Words: Ohio case statute debt collections. What is the Ohio Revised Code citation?
Statute Cite Here:
b. Is there an Ohio case law precedent regarding what level of proof is required in a debt collections lawsuit? Key Words: Ohio case law debt collections.
Case Cite(s) Here:
5. Is there Ohio statutory law the specifically addresses and regulates administrative agencies?
a. Statute Cite Here:
6. Is there a written law or case law anywhere in the state of Ohio regarding funeral processions running through a red-light. Find the statute or state reference and provide it here:
Notes:
Under the FDCPA, attorneys who regularly collect debts on behalf of their clients are subject to the same code of conduct non-attorney debt collectors are required to follow. The line between a law firm that “regularly” collects consumer debts for its clients and one that does not is not always clear. Whether an attorney is a “debt collector” is determined on a case-by-case basis by looking to the volume of collection activity performed, whether the attorney has an ongoing relationship with a creditor, the percentage of an attorney’s practice that is taken up with debt collection, the frequency and pattern of debt collection activities, and whether the attorney has systems or personnel in place to facilitate debt collection.
The primary legal basis for Plaintiffs' suit against Defendants arises under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692e and 1692f.7 The FDCPA was designed to "eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses." 15 U.S.C. § 1692(e). Under the FDCPA, a "debt collector" is defined as "[a]ny 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). As a preliminary matter, the Court notes that attorney debt collectors engaged in litigation are subject to the strictures of the FDCPA. Heintz v. Jenkins, 514 U.S. 291 , 294, 115 S.Ct. 1489, 131 L.Ed.2d 395 (1995).
Ohio Revised Code 1319.12 Taking assignment of debts.
(1) As used in this section, "collection agency" means any person who, for compensation, contingent or otherwise, or for other valuable consideration, offers services to collect an alleged debt asserted to be owed to another.
(2) "Collection agency" does not mean a person whose collection activities are confined to and directly related to the operation of another business, including, but not limited to, the following:
(a) Any bank, including the trust department of a bank, trust company, savings and loan association, savings bank, credit union, or fiduciary as defined in section 5815.04 of the Revised Code, except those that own or operate a collection agency;
(b) Any real estate broker or real estate salesperson, as defined in section 4735.01 of the Revised Code;
(c) Any retail seller collecting its own accounts;
(d) Any insurance company authorized to do business in this state under Title XXXIX of the Revised Code or a health insuring corporation authorized to operate in this state under Chapter 1751. of the Revised Code;
(e) Any public officer or judicial officer acting under order of a court;
(f) Any licensee as defined either in section 1321.01 or 1321.71 of the Revised Code, or any registrant as defined in section 1321.51 of the Revised Code;
(h) Any person registered to sell interment rights under section 4767.031 of the Revised Code.
(C) No collection agency shall commence litigation for the collection of an assigned account, bill, or other evidence of indebtedness unless it has taken the assignment in accordance with all of the following requirements:
(1) The assignment was voluntary, properly executed, and acknowledged by the person transferring title to the collection agency.
(2) The collection agency did not require the assignment as a condition to listing the account, bill, or other evidence of indebtedness with the collection agency for collection.
(3) The assignment was manifested by a written agreement separate from and in addition to any document intended for the purpose of listing the account, bill, or other evidence of indebtedness with the collection agency. The written agreement shall state the effective date of the assignment and the consideration paid or given, if any, for the assignment and shall expressly authorize the collection agency to refer the assigned account, bill, or other evidence of indebtedness to an attorney admitted to the practice of law in this state for the commencement of litigation. The written agreement also shall disclose that the collection agency may consolidate, for purposes of filing an action, the assigned account, bill, or other evidence of indebtedness with those of other creditors against an individual debtor or co-debtors.
(4) Upon the effective date of the assignment to the collection agency, the creditor's account maintained by the collection agency in connection with the assigned account, bill, or other evidence of indebtedness was canceled.
(D) A collection agency shall commence litigation for the collection of an assigned account, bill, or other evidence of indebtedness in a court of competent jurisdiction located in the county in which the debtor resides, or in the case of co-debtors, a county in which at least one of the co-debtors resides.
(E) No collection agency shall commence any litigation authorized by this section unless the agency appears by an attorney admitted to the practice of law in this state.
(F) This section does not affect the powers and duties of any person described in division (A)(2) of this section.
(G) Nothing in this section relieves a collection agency from complying with the "Fair Debt Collection Practices Act," 91 Stat. 874 (1977), 15 U.S.C. 1692, as amended, or deprives any debtor of the right to assert defenses as provided in section 1317.031 of the Revised Code and 16 C.F.R. 433, as amended.
Photographic Authentication and Admissibility: Evidence Rules 901 and 1001
Under Evidence Rule 901 and its state analogues, photographs are typically admitted as demonstrative evidence to illustrate testimony. When used purely as demonstrative evidence, legal issues regarding authentication and chain of custody are somewhat relaxed so long as a competent witness can testify that the photograph fairly and accurately depicts the scene about which he or she is testifying. In these situations, it is generally not necessary that the authenticating witness be the same as the photographer or as a competent person who observed the making of the photograph. United States v. Clayton, 643 F.2d 1071, 1074 (C.A. 5, 1981. Videos are typically authenticated in the same manner as a still photograph. Saturn Manufacturing, Inc. V. Williams Patent Crusher and Pulverizer Company, 713 F.2d 1347, 1357 (C.A. 8, 1983). I will illustrate some portions of this discussion using a series of decisions by the Alaska Supreme Court whose evidentiary rules and interpretations typically closely follow majority federal views.
Under Evidence Rules 1001 through 1004, an �original� document (including a photograph) is required to prove the truth of the facts for which any document is offered. However, over many years, the definition of an �original� has been greatly expanded, particularly with regard to electronically stored information, and the requirement for an �original� is honored more in the breach than to the letter. Indeed, duplicates, including electronically made prints or digitally identical electronic file duplicates, are typically admissible to the same degree as an original document unless admitting the duplicate would prove inaccurate or unfair.
Authentication requirements are somewhat stiffened where there is a strong argument that a photograph does not accurately reflect the scene or that the use of a duplicate is inaccurate or unfair. Generally, a trial court�s admission or exclusion of proffered photographs is reviewed under an abuse of discretion standard. (See End Notes 2 and 4, below) Common sense, a reasonably objective evaluation of your intended use of the proposed photographic evidence and some trial experience are usually an adequate guide to the allowable demonstrative or evidentiary uses of a photograph. A trier of fact�s evaluation of �non-demeanor� evidence like photographs (as contrasted with live witness testimony) is theoretically subject to a less deferential standard of appellate review but this more stringent
