Rickley v. NCA Financial Services, Inc. et al

Filing 15

ORDER CONTINUING CMC; ORDER FOR PLAINTIFF TO UPDATE STATUS RE BANKRUPTCY STAY. Signed by Judge Maria-Elena James on 7/10/2009. (mejlc1, COURT STAFF) (Filed on 7/10/2009)

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JAMES J. BERGMANN, ESQ., SBN 220447 The Law Office of Donald F. Seth 290 B Street, Suite 205 Santa Rosa, CA 95401 [phone] telephone [phone] fax [e-mail] Attorneys for Plaintiff ENID G. RICKLEY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ENID G. RICKLEY, CASE NO. C 09-00296 MEJ CASE MANAGEMENT STATEMENT AND ORDER THEREON Date: July 16, 2009 Time: 10:00 a.m. Courtroom: B, 15th Floor / Honorable Maria-Elena James

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CASE MANAGEMENT STATEMENT C 09-00296 MEJ

NCA FINANCIAL SERVICES, INC., NATIONAL CREDIT ACCEPTANCE, and DOES 1 through 10, inclusive,

Defendants have not participated in preparing this Case Management Statement; it was prepared by Plaintiff ENID G. RICKLEY alone. Both named Defendants, NCA FINANCIAL SERVICES, INC. ("NCA") and NATIONAL CREDIT ACCEPTANCE ("NATIONAL") have filed for bankruptcy protection in the United States Bankruptcy Court, Eastern District of California, Sacramento Division. True and correct copies of these two Defendants' "Notice of Chapter 7 Bankruptcy Case, Meeting of Creditors, and Deadlines" is attached hereto as Exhibits A and B. NCA filed its bankruptcy case, Case No. 09-31129-A-7, on June 1, 2009; NATIONAL filed its bankruptcy case, Case No. 09-31658-C-7, on June 9, 2009. NCA was

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served with this action on May 13, 2009, and NATIONAL was served on May 31, 2009. A Meeting of Creditors has been set in each case: NCA's is set for July 13, 2009 at 8:00 a.m.; NATIONAL's is set for July 17, 2009 at 1:00 p.m. Both defendants are represented in their bankruptcy proceedings by the same attorney: John M. O'Donnell, Esq. 915 University Ave. Sacramento, CA 95825 [phone] Plaintiff's attorney plans to attend the July 13, 2009 Meeting of Creditors, and will inform the Court of any relevant information after the Meeting. Since an automatic stay has been entered as to both Defendants, Plaintiff has prepared this Case Management Statement without participation from Defendants. No Proof of Claim yet filed: Plaintiff has not filed a Proof of Claim with the Bankruptcy Court as to either Defendant. The Bankruptcy Notices state that there does not appear to be any property available to the trustee to pay creditors. Plaintiff may file Proof(s) of Claim at a later date. 1. Jurisdiction and Service: This Court has jurisdiction under the provisions of 15 U.S.C. §1692k(d) and 28 U.S.C. §1367. Both defendants have been served, but plaintiff's counsel has not yet been contacted by defense counsel for either defendant. No issues regarding personal jurisdiction or venue are anticipated by Plaintiff. 2. Facts: In January, 2008, Defendants began telephoning Plaintiff at work, on her cell phone, and at home, in an attempt to collect a debt they claimed she owed. Plaintiff alleges that Defendants violated the federal Fair Debt Collection Practices Act ("FDCPA") and California's Rosenthal Fair Debt Collection Practices Act ("Rosenthal Act") in attempting to collect this debt, in the following ways: (a) Defendants told Plaintiff's supervisor that they were going to send a sheriff to garnish plaintiff's wages, when in fact they had no legal right to do so; (b) Defendants falsely told Plaintiff that they could garnish her security deposit from her landlord,

CASE MANAGEMENT STATEMENT C 09-00296 MEJ -2-

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and that they could draw funds from her credit cards to pay the debt; (c)Defendants told Plaintiff that they had a "court order" against Plaintiff, when in fact they did not; (d) Defendants continued calling and sending letters to Plaintiff after they received her written request to cease all communication with her; and (e) Defendants failed to send Plaintiff a "validation notice" within five days of their first communication with her. 3. Legal Issues: Whether Defendants' acts and omissions violated the FDCPA and Rosenthal Act. 4. Motions: Plaintiff may request entry of default, and may move for default judgments as to both defendants, depending on the status of the Bankruptcy Court's automatic stay. 5. Amendment of Pleadings: Depending on what Plaintiff's counsel finds out at the Meeting of Creditors on July 13, 2009, Plaintiff may seek leave to amend her Complaint in order to add other defendants. 6. through 9. These are not relevant since there is an automatic stay preventing litigation. 10. Related Cases: In re NCA Financial Services, Inc., Bankr. E.D. Cal., Case No. 0931129-A-7; and In re National Credit Acceptance, Bankr. E.D. Cal., Case No. 09-31658-C-7. 11. Relief: Plaintiff seeks actual and statutory damages as allowed under 15 U.S.C. §1692k and California Civil Code §1788.30. 12. Settlement and ADR: Plaintiff is amenable to ADR and will discuss ADR methods with Defendants after they appear, if the bankruptcy stay is lifted or if litigation is otherwise resumed. 13. Consent to Magistrate Judge: It is unknown at this time whether all parties will consent to proceed with a Magistrate Judge. 14. Other References: Plaintiff does not consent to binding arbitration, but may be amenable to referral by the Court to some other program. 15. Narrowing of Issues: None at this time.

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16. Expedited Schedule: Unknown at this time. 17. Scheduling: Plaintiff is amenable to working with the Court to set a schedule for this case. 18. Trial: The following is dependant on the status of the Bankruptcy proceedings, and whether or not Plaintiff will amend in additional defendants: Plaintiff requests a jury trial. It is estimated that a trial in this matter will take three to six full court days. 19. Disclosure of Non-Party Interested Entities or Persons: No party has yet filed a disclosure of non-party interested entities or persons. The Bankruptcy Trustees in the pending bankruptcy proceedings may have a financial interest. The Trustees are: In re NCA Financial Services, Inc., Bankr. E.D. Cal., Case No. 09-31129-A-7 Hank Spacone P.O. Box 255808 Sacramento, CA 95865 [phone] In re National Credit Acceptance, Bankr. E.D. Cal., Case No. 09-31658-C-7 Prem N. Dhawan P.O. Box 965 Benicia, CA 94510 [phone] 20. Other Matters: None known. Dated: July 9 , 2009 /s/ James J. Bergmann JAMES J. BERGMANN. Law Office of Donald F. Seth Attorneys for Plaintiff ENID G. RICKLEY

The CMC is hereby CONTINUED to October 8, 2009 at 10:00 a.m. in Courtroom B. Whenever such information becomes available, Plaintiff shall update the Court as to any automatic bankruptcy stay for both defendants. If no bankruptcy stay notice has been filed prior to the CMC, the parties shall file a joint statement by October 1, 2009. Dated: July 10, 2009

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