Source Lending gets wacky.

(Spam)

2005-06-03 20:42
Comments [4]

I sued Source Lending corporation some time ago for junk faxes; the case has been pled as a class, on behalf of all the people who received junk faxes from source lending. They have been playing games, ignoring phone calls, and making ludicrous demands (they wanted me to indemnify them against all possible future junk fax cases at one point!) for quite some time; it’s been almost two years since they decided to completely blow off a scheduled deposition, and to this day, we have received no substantive answers to most of our discovery requests.

We received a “reply memorandum” from Defendant’s law clerk today. This is in response to a response to a hilariously badly-written memo they previously filed in this case. They are attempting to argue that, under various legal fictions (and just plain fictions), it is impossible for me to sue them because someone else already did.

The essence of their defense is that a serial killer should only be tried for a single murder, because any other case has the same essential facts (killer, method of killing, and the question of whether the victim actually died), and it would thus be double jeopardy. (In civil cases, this is called res judicata.)

A few comments are perhaps in order.

About That Summary

In this section, they start with a baldfaced lie. “Plaintiff, through his counsel Steven Appelget, is attempting to leverage a single alleged transmission of a fax into a class action.” In fact, not only did they send me two faxes, but another person (the one who already sued them) also received one of their unsolicted faxes. Given the number of times they stress that the other case (ELIDE v. Source Lending) has already been settled, they can hardly pretend ignorance of it.

Section I: Argument

This optimistically-named section makes a number of interesting claims. The most significant is the assertion that I am, in fact, Robert ELIDE, the other person I know who has sued them over their junk faxes. The “argument” is that, since Mr. ELIDE’s fax was similar to the first one I received, a settlement of that case settles this one. This is insultingly bad. First off, given that they were active in settlement negotiations with both myself and Mr. ELIDE at the same time, it seems reasonable to assert that they were aware of both cases at once. They continued to discuss settlement terms with me after settling with ELIDE; obviously, they felt there was something left to settle.

The section describing the factual circumstances is elegantly disingenuous. I quote:

Seebach’s claim that ELIDE received his fax three hours later distinguishes the two without creating a legally substantive difference, changing only the timing of the injury, not the facts required to prove it.

Compare this with the hypothetical defense in Conan v. Extras:

Dark Tower Guard #2’s claim that Dark Tower Guard #1 was decapitated three minutes earlier distinguishes the two alleged incidents without creating a legally substantive difference, changing only the timing of the injury, not the facts required to prove it.

You may think that this is as bad as it gets. Not so! Not so! They then proceed to assert that I am “in privity” with Mr. ELIDE, which is to say, that we should be seen as the same legal entity for the purposes of this case. A good example of privity would be a legal claim made by an individual, and a claim for the same injury made by the executor of that individual’s estate. A bad example would be some guy and some other guy he met a couple of times who happens to have the same attorney. Privity refers to people whose interests are so similar that they have the same legal rights; not equivalent rights (as each person has an equivalent right to free speech) but the same instance of a right, as with perhaps the joint owners of a car, who could not reasonably each separately bring a suit seeking damages after the car were damaged in an accident.

They begin by asserting that I could have easily merged my action with the ELIDE action. ELIDE initiated his action, pro se, at a time when I was still trying to figure out which faxes had been sent by which entities. When Source’s surrealistic approach to litigation became unmanageable, Mr. ELIDE retained Mr. Appelget to represent him. In September of 2003, we managed to identify that two of my faxes were sent by Source Lending, and Mr. Appelget commenced suit against them on my behalf.

In fact, by the time I knew I had a claim against Source Lending, Mr. ELIDE’s case was already well established. We did attempt to do some joint discovery; for instance, the scheduled deposition which Source Lending unlawfully simply decided not to show up for was to be a joint deposition, based on the substantial overlap of relevant facts such as the identity of the fax blaster Source used, the number of faxes sent, and so on. This does not reflect commonality of issues such as “was this particular fax number on their list” (as Mr. ELIDE and I had, and have, different fax numbers).

It may have been theoretically possible that I could have joined the ELIDE action. However, since I received two faxes, and Mr. ELIDE only one, there would have been substantial differences between the facts at issue.

More significantly, Mr. ELIDE and I did not have overlapping interests. His interest in junk fax cases has been primarily financial; he has been damaged and wishes to recover those damages. Mine is primarily rooted in eliminating the practice of junk faxing; while I do collect the bounty Congress established for junk faxes, I give the money away. Mr. ELIDE is primarily interested in defending his own interests; he demands that defendants remove him from their fax lists, and not fax him anymore. I have consistently requested (and thus far, always gotten) blanket commitments to cease unsolicited faxing, and requested injunctive relief from the court that would protect everybody. My case is pled as a class because I do not feel that eliminating one hundredth of one percent of Source Lending’s unlawful activities provides a sufficient social benefit to justify the time I have to waste dealing with their parody of legal work.

The claim that the “threat of collusion is a distinct possibility” is laughable. Their argument, such as it is, is:

Far less likely is the idea that two men with similar altruistic designs have accidentally found themselves suing the same companies with the same attorney.

No one would have made such a ludicrous claim. Mr. ELIDE was the person who referred me to the only lawyer I have yet found whose consumer protection practice includes TCPA actions; it is hardly an accident that we are using the same attorney. Source Lending sent faxes to numerous people; it is hardly an accident that multiple parties would sue Source, instead of each picking a different target for their suit. Furthermore, I don’t recall anyone accusing Mr. ELIDE of “altruistic designs”. (Not that this matters; the law is not written in terms of altruism, but in terms of a blanket prohibition of unsolicted facsimile advertising.)

Ironically, their citation to Judge Leung’s reference to the earlier court holding in ELIDE v. MCU dispels any notion of privity; we find that a court already considered a Seebach junk fax case while aware that a ELIDE junk fax case against the same Defendant had already been decided by another court after a trial at which I testified. When considering the second case, Judge Leung awarded judgment for the Plaintiff, that being me.

Section II: Actions without class

In Section 2, Source asserts that their willful obstructionism towards any discussion of their use of a fax blaster is somehow my fault. Source asserts that the number of plaintiffs in this case clearly falls below the requirement of impracticability of joinder. In fact, strictly speaking, I don’t even think joinder is possible for a single plaintiff. However, the size of the class is simply unknown to us; all we can do is assume that, like any other faxer, they presumably hit tens of thousands of fax machines. This creates a class of tens of thousands of people, certainly making joinder impracticable. Worse, because Source has made it clear that they have no idea to whom their faxes were sent, there isn’t even a way to reach these people. The only fair alternative is to try the case as a class, seeking injunctive relief on behalf of the class members.

Source’s tangle of mutually-exclusive excuses is at its finest here. Source has never responded substantively to relevant discovery requests, but now seeks to have the lack of details about the class used as a basis for not certifying the class. They assert that I should have done discovery. Indeed! In the last two years (or close to it), Source has received interrogatories, requests for admission, and been the subject of a scheduled deposition. Their responses to this have been dismissive at best, and they have insisted that it is not up to them to identify the fax blaster they hired to send their faxes, nor to disclose any details of that business relationship.

How, one wonders, am I supposed to proceed with discovery? I should presumably identify the parties most capable of disclosing the information, and request it from them. I have done precisely this; I have identified Source Lending as the most plausible source of this information, and asked them to produce it. They have refused on spurious grounds. It is my belief that they do have the ability to disclose at least some information about their junk faxing, but are aware that doing so would prove their earlier denials to be lies. This is incentive enough, it seems, to refuse to answer legally allowed discovery, and to instead make derisive comments about the quality of my discovery. I believe the poor quality of my discovery can be traced directly to my decision to select querents based on their presumed knowledge of the facts, rather than their willingness to comply with state or federal laws, the rules of civil procedure, or indeed, the laws of physics.

For additional amusement, they produced a “true and correct” copy of some entries from this blog — but in fact, the copy is full of omissions and snips, as demonstrated by the erratic page numbering and omitted paragraphs.

Peter Seebach

Comments [4]

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Advertising as assault

(Spam)

2005-05-27 16:18
Comments

Advertising is an assault. Don’t let the hyperbole put you off. This is a well-considered piece on the essential hostility of modern advertisements.

I have a movie that comes with four minutes of previews you can’t skip. Well, I borrowed it from a friend. I am never buying that movie. I liked it. I woulda been happy to pay twenty bucks for the option of watching it whenever I wanted. But see, they won’t sell me that. They’ll only sell me the option of watching it five minutes after I want to. Fuck ‘em.

Peter Seebach

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Apple loses and wins, yet again.

(GeekStuff)

2005-05-27 15:28
Comments

So, about two years ago, I bought a G4 mac. And it was a demo model, or possibly a return, so I bought AppleCare for it. There was some trouble; they had the machine marked as sold in August of 2002, not March of 2003. But I sent the receipt in, and they said it was covered.

Fast-forward to today, when the service guy (it’s in for a broken firewire connector) says it’s not covered. So. I’m >1000 miles from my paperwork and the machine. Argh! My instinct of distrusting companies kicks in; this is gonna be a nightmare and take weeks to work out, and I can’t even start on it ‘til I get home on Wednesday. But then I think, hey, Apple’s sorta cool sometimes.

I call Apple.

Sure enough, they are able to find and fix the problem. It does help that I wrote down my “incident number” when talking to support about the machine before. Using that, they find out that they’ve got me with a service plan on a machine whose serial number ends in NFMMA, and I’m trying to get service on a machine whose serial number ends in NSMMA.

So they fix it. Right there, while I’m on the phone.

That’s sorta cool. A lot of companies do not take service that seriously, and the quality of support is one reason I like Apple.

BTW, on a related note: That new G5? Incredibly quiet. I love it to bits. It was crashy, but I replaced the cheapo memory I got for it with some slightly better memory (at a net cost to me of $0.86!) and now it’s flawless. OS X Server is teh b0mb.

Peter Seebach

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Why I'm still using Macs, even though I don't always like them.

(GeekStuff)

2005-05-21 00:44
Comments [3]

I’m doing more Apple-related work these days, so I decided it was time to go ahead and get a G5. I got the second-cheapest G5 Mac they sell, the dual 2.0Ghz. (Dual-processor is a big win.)

It’s not been entirely an easy path. The new machine has only one open drive bay (the older machine it’s replacing had four), only one slot for an optical drive (the older one had two), only three PCI slots (the older one had four), doesn’t support 5v PCI cards (which loses me my SCSI controller and serial port card, both of which were 5v only), takes DIMMs only in pairs (and I didn’t realize this and got a singleton)… In short, it’s pretty much consistently inconvenient to me. I need to go get more memory. I need to get a serial ATA drive or another external FireWire case if I want to add disk space to it. In short, at every turn, I need to do extra stuff to make the machine work.

So. Why do I use a Mac?

Let me tell you about my Windows machine. Every so often, it stops booting for a while. The symptom, which you can find hundreds of pages about on the net, is that it will hang during the initial “fade-in” of the Windows logo. If you try to boot in Safe Mode, it hangs right after AGP440.SYS.

Last time it did this, I spent a few days shuffling parts and reloading. Then it suddenly got better without explanation.

A few months later, it’s doing it again. I have a deadline to meet. I am supposed to be writing. What am I doing? Waiting 15 minutes to see whether the Windows install CD has hung or is just painfully slow so I can try to get to a recovery console and try a variety of cargo-cult tricks picked up off of web pages that might make this machine work with the exact same set of hardware and software it was booting with before I moved it from the right side of my desk to the left side of my desk, or possibly even with a few things taken out.

This is why I use a Mac; because you can get the Mac to tell you what it’s doing, and it generally doesn’t just inexplicably stop booting for a while then maybe start again.

Needless to say, outside of specific projects that require Windows-only software, I don’t run Windows. (Well, I do. It’s a good games machine… When it boots.)

Edited to add: The cargo cult people were right. Even the Windows install CD couldn’t boot, so the solution was to go into the BIOS, not make any changes, and select “Save and exit”. Some people think this means I may need a new battery for the motherboard.

Peter Seebach

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At least they're honest.

(Personal)

2005-05-20 15:46
Comments

I have a credit card through US Bank. They recently announced that payments over the phone will be subject to a $10 fee. They used to be free if you did them automatically, and only cost money if you needed to talk to a person.

I called and asked why. They said that this is a policy change. I agreed that it certainly was a change, and I was wondering why. The service representative cheerfully acknowledged that there was no particular reason for it, that there is no underlying cost involved that they have to recover, and that it’s simply a way to gouge extra money out of customers.

I mean, not that these are good things. But it’s refreshing, I guess, that they didn’t feel the need to lie to me about it.

Peter Seebach

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Sometimes I don't know what to make of these.

(Personal)

2005-05-19 15:23
Comments

So, I got a call, from “David Collins” (305-971-4149).

He asked what company this was. (??) I told him it’s not a company, ‘cuz he called my personal line. He asked if we have a web site on the computer, and mentioned plethora (presumably referring to plethora.net, the ISP/consulting thing I run), so I said “sure, what do you want”, and he asked what we do. What we do? He was just at the web site. I have no idea what to make of this. So I asked him why he wanted to know, and he mumbled something and hung up.

So I called back, and asked for more information, and he said “I axed you what you do, and if you’re that smart, I don’t think I wanna do business with you, don’t call me back.” And hung up.

WTF?

Is this related to those emails we always get from people who want to use a credit card to order a thousand pentium 3 processors for shipping to Eastern Europe?

I mean, what am I supposed to think? He calls me maybe wanting to do business, but he has no idea what we do? He isn’t willing to say who he is or what he wants, and if we ask, that means he doesn’t want to do business with us?

I post the contact info so anyone else who gets similar calls can maybe provide additional data points, and/or to let them know that, yeah, that guy’s always like that.

FWIW, he seems to be in Miami, FL.

Peter Seebach

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Con!

(Personal)

2005-05-12 04:22
Comments [1]

Now, I get to drive to Chicago, for Anime Central. I enjoy anime conventions, but acen has a special place in my heart — it was my first con. It’s also, so far, one of the best-run. The Artist’s Alley director is active and competent; these are both rare traits in an Artist’s Alley director. We’re looking forward to it.

On the down side, our new comic isn’t gonna be available, because I can’t make FrameMaker stop “fixing” graphics. The comic has a lot of high-contrast black and white graphics. When I do test prints, they look great. If I try to make a PDF file from the original FrameMaker document, though, they become grungy grey. As in, the bright-white backgrounds, perfect 0xffffff white, suddenly come out about 20% grey. No idea why. I think we had this problem come and go with the previous one (target down), although we finally did come up with a greyscale PDF of it which can be printed reasonably.

This seems to correlate to attempts to get the document scaled down enough to fit at least a page or two in the 36MB of printer memory available to us… But I don’t see why. Most graphics programs, if they were to scale down a white image, would come up with a smaller white image, not a grey one.

Frame is full of behaviors which probably made sense to someone, but that someone isn’t me. Say you’ve got a picture you loaded into your document. You can’t enter numeric sizes and have it preserve the aspect ratio; you have to hand-calculate the corresponding height for your width. Also, when you import a graphic, you get an “anchored frame”, which is a document object, containing the graphic, which is another object. You can’t just import the graphic as an object. Also, in my sample document, the newly imported graphic tended to show up on another page. I think this had to do with page breaks. If I could just import the image without anchoring it to the text, that’d be fine, but so far as I can tell, that can’t be done.

Nightmarish program. There’s things it does well, but frankly, I’m more productive hand-coding DocBook. In fact, I may just go ahead and do this project in DocBook when I get back from Con. Another reason to loathe Adobe, if you were running low.

Peter Seebach

Comments [1]

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Open letter to the Illinois Department of Transportation

(Personal)

2005-05-08 01:17
Comments [4]

Illinois Department of Transportation
2300 S. Dirksen Pkwy.
Springfield, IL 62764

Dear Department of Transportation:

In late April, I had occasion to take the Illinois tollway system from Wisconsin to Indiana, and then from Indiana to Wisconsin. I must assure you, the experience was remarkable. I have used your tollway before, mostly for trips to Chicago. I was immediately struck by the observation that the toll rate had jumped from $0.40 per booth to $0.80 or $1.00 per booth. At one of the last tollbooths I reached, I attempted to exchange an extra dollar for quarters, but the booth attendent nearly returned the extra dollar to me; in fact, he donated it with good cheer to the wind, trusting its fate to whatever agency governs the elements. However, he very kindly gave me four quarters for it anyway, a guesture I certainly appreciated.

On the way out, the tollway seemed mostly unexceptional. On the way back, however, we came through Chicago between roughly 3:30PM and 6:00PM. I don’t mean to imply any imprecision about when we were there; we were there that whole time.

I was particularly struck by the design of the “express” lanes, where incoming traffic had to merge through the express lanes to reach exits four lanes away. This innovative design, completely unlike any other express lanes I have seen in any state, gave a sort of “we’re all in this together” feel, where the express lanes were in no way singled out for special efficiency or speed.

Now, for perhaps the first hour and a half I spent on the Chicago portion of the tollway, I was unable to figure this out; why was I in the only traffic I’ve ever seen which was actually worse than San Francisco rush hour, and yet, being asked to pay for access to this road? Elsewhere, badly-maintained roads are generally covered by state taxes or federal funds, and toll roads show better than usual design and traffic flow.

However, somewhere during the estimated 62 minutes (according to the conveniently located signs) it took us to reach Edens Crossing, it occurred to me that a simple explanation was available; this was satire. Seen as satire, the entire experience makes sense. The oasis structures “closed to serve you better”. The express lanes with cars merging across them, frequently actually slower than the local lanes. The unpredictable and ever-rising toll costs. The whole thing is, of course, a deeply incisive commentary on the essential futility of modern commuter lifestyles, demonstrating the fundamental absurdity of our notions of “transit”. In a world full of comedians asking why we drive on the parkway and park in the driveway, the Illinois Department of Transportation has offered us the sensible alternative of parking on the parkway.

Needless to say, performance art on a scale like this cannot be cheap; it is obvious that it imposes substantial costs, and recovering them through the “toll booths” makes sense. It might be easier for people to handle if the costs were more predictable; perhaps, say, having all costs be multiples of $.25 would be better than the current system which virtually guarantees that a typical booth will require at least two, and often three, distinct types of currency — and yet, even this is probably social commentary on the inevitability of a single world currency.

It is worth mentioning that, in fact, due to the mysteries of wind and the impossibility of driving more than about five to six feet without coming to a complete stop, I was able to recover the wayward dollar bill about a minute (and perhaps fifteen feet, as the crow flies) from the tollbooth where it was offered up to whatever winds would carry it. I enclose it (or perhaps another; I regret that I cannot easily tell them apart) for your perusal and enjoyment.

Regards,
Peter Seebach, traveller.

p.s.: Next time, I am considering driving through Lake Michigan. It might be faster.

Yes, I really sent this. And yes, I really enclosed a dollar bill. Could even be the same one.

Peter Seebach

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Measure once, cut once, paint it over.

(Personal)

2005-05-06 17:36
Comments

My house has been home to a variety of do-it-yourself people. There’s a light in the basement which can be disabled by unscrewing either of two fuses. We don’t know exactly why. The blinds on one of the windows upstairs are spray-painted — strings and all. The house is full of patchwork corrections on top of originally ill-considered things. We’ve found grounded outlets where the ground wire just ran a couple of inches into a pipe to run into… Well, nothing. The lamp over the upstairs kitchen sink has a pair of wires (of the same color!) coming out of the wall to it, and then has a ground wire running around inside it, not connected to anything.

A while back, one of the handles on a kitchen cabinet came loose. We finally figured it out; the bottom side of the handle was never even screwed on! It was just shoved into wet paint which had dried around it to hold it in place lightly until it came loose. So, today, I took it off, went into the basement, found a matching screw, knocked the paint out of the hole, and put the screws in… Only to discover that the hole was about 1/8” off.

Now, it turns out… It is not very hard to get the holes lined up with something like this. What this means is that whoever put that together just plain didn’t care about measuring.

A bit of work later, it’s at least screwed together. Wouldn’t hurt to repaint the cabinet and maybe fill in the rest of the hole (I enlarged the hole a bit so the screw could line up), but it works. I just hope the next owners are patient with our house full of weird things, upside-down connectors, and the like. It’s not our fault!

Peter Seebach

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Judgment!

(Spam)

2005-05-05 18:57
Comments [5]

Most of my junk fax cases have settled. Once, we actually got summary judgment on liability (but not on damages) before settling. But we have a new example. Complex Capital Mortgage bounced a settlement check. (With the amount of money involved, I think this is technically even a criminal act.) We went to court to ask for enforcement, and… Well, it was funny. To make a long story short, CCM was ordered to pay up within a week, or at least to make sure their bank account could provide the money.

They didn’t; in fact, they stopped payment on the check (which the judge had asked us to present to the bank again).

So now we have judgment. They owe money, and there is a real, live, legal injunction against them sending more junk faxes.

Next up: Collecting. Collecting money from companies is fun, because they don’t have all the exemptions and defenses individuals do. We may well just get handed our money by their bank without trouble. Woo!

So far, they’re down $570 on the deal; they have to pay various costs, and we may actually be awarded another $500 or so of costs, to say nothing of the costs we incur in collection, which are also legitimately added to the amount owed. In short, they may be able to stretch this out until we get over a thousand dollars of extra money as reimbursement for them being bad.

Woot!

Peter Seebach

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