Pwnz3d, beeyotch

2005-09-01 18:30

Well, well, well. Let’s just cut to the chase; Defendant’s motion to dismiss is DENIED. (Emphasis in original.)

Source Lending’s surreal combination of argumentation has been weighed in the balance and found wanting. It’s hard to express how silly their arguments have been. After they tired of accusing me of extortion, they showed up in court with a brand new argument; this is all a lark! There is no serious case here. Whether or not they committed thousands of violations of federal law is not the point. The big question is whether I am having too much fun; after all, if you’re having fun in court, any remedial claims would be barred by res sola bozocata (“it’s just clowning”).

No, folks. This isn’t a lark. A lark is one of these:

A lark
Image inverted left/right from original

Or one of these:

A lark
Image inverted left/right from original. Original copyright Carol Davis, used by kind permission.

This is not to say that every argument raised in this case has been serious or well-grounded. For instance, consider this knee-slapper, offered by defense attorneys Mahoney and Emerson as explanation for Defendant’s refusal to offer even basic responses to interrogatories they have been sitting on for close to two years:

The time afforded Seebach has been more than ample to discover, on his own, the merits of his class action. […] Despite an allegation of thousands of victims, and hundreds of days to identify them Seebach has failed to find even one more, much less the numbers required to make joinder imparcticable.

What’s the judge say? The judge says this.

Plaintiff claims that Defendant has not cooperated in the discovery process which would gather from Defendant relevant and discoverable informationnecessary for the Court to evaluate the class action allegations. Pltf. Opp. pp 11-13. In its Reply, defendant does not deny these allegations. Deft. Reply pp. 4-5. Defendant only says that plaintiff has not been able to discover anything yet. This leaves the Court with the impression that Defendant has not cooperated in the discovery process.
[…]
In the present case, Plaintiff may have had the time to discover the necessary facts, but if Defendant has not cooperated, the amount of time means nothing. […] The answer is non-responsive, especially since it appears from the question that this would be information to which Source Lending had knowledge or could easily obtain the knowledge. […] Again, Source Lending should have this information or easy access to the information, yet, it gives another non-responsive answer. […] The Court also notes that Defendant’s claim of attorney-client privilege or the work product rule in its answers to those three interrogatories is questionable, at best.

The judge also contributed a few other choice morsels; “Defendant is incorrect.” “These arguments are without merit.” “The Court agrees with Plaintiff […]”

Entirely absent from this order are any reference to Source Lending’s ever more ludicrous simultaneous assertions that this amounts to some sort of blackmail or extortion (their words), or the even sillier argument that, if I am just going to give the money away, I am ill-qualified to represent a class. (Apparently, a good class rep should be amenable to bribes.) This is for the best; the “arguments” are so meaningless and ill-formed as to defy rebuttal, standing best on their own as a monument to the importance of having a case before calling names.

Of particular interest is Defendant’s tiresome assertion that I am in privity with someone else who sued them. The judge has adequately addressed the argument, observing that “The only known relationship is that they both hired Attorney Appelget as their counsel.”

Since Defendant’s laziness about discovery covers both the answering and asking of questions, I will save them the trouble of striving to form an Interrogatory trying to figure out the actual relationship between myself and Bob ELIDE, which is apparently of great interest to them.

I met Bob online, talked to him on the phone, and got a referral to an attorney who represented him in some junk fax cases. He explained that he handled most of his cases pro se, but that he retained an attorney for difficult cases. When I presented Mr. Appelget with my junk faxes, he identified the Source Lending faxes based on Bob’s existing pro se suit against Source. Bob sued Source Lending on April 20th, 2003; my case was not initiated until October 17th, 2003.

Defendant’s allegation that I was necessarily aware of Bob’s case is based on false beliefs. Defendant, of course, should be aware that Bob’s case was originally filed pro se. They certainly can’t honestly think these are the same cases, despite their claims to the contrary, given that settlement negotiations in both cases were simultaneous, and clearly distinct. (This includes the bizarre letter they sent proposing that they settle with me only if I gave them blanket indemnity against other junk fax cases!)

The question of why I didn’t join my case with Bob’s is easily answered; Bob was seeking financial relief and had already filed and pled the case in a way incompatible with my interests. My interests are focused around preventing future junk faxing by Source Lending; Bob wanted to get paid. While the instrumentality of the cases (unlawful faxes sent by Source) is similar, the relief desired is dissimilar. Joinder would have served neither party’s interests. Source could have found this out by simply asking, but the discovery process itself seems to be a mystery to them.

If Defendant wishes to continue wasting everyone’s time with this frivolous defense, I would suggest beginning by complying with discovery. Defendant’s refusal to show up for a deposition on the grounds of “we dun wanna” (they refused to come to the first noticed deposition, then claimed that they were unavailable for the second; they have not returned calls seeking to reschedule) is hardly helpful. The judge has helpfully identified specific interrogatories to which a response simply must be given for the case to proceed. If Defendant’s allegations that there is no basis for class certification are rooted in fact, why are they so unwilling to provide the evidence needed to let the court establish this?

What I want is the same thing I always wanted from this; I want Defendant to never send junk faxes again, and I want Defendant to make some kind of restitution to the victims of their unlawful advertising campaigns. If they wanted to settle on terms like that, we could be done with this. Of course, they’d still have to cough up the information about who sent their faxes, how many were sent, and so on. For now, it seems they’d rather call names, indulge in a sort of surreal parody of standard civil practice, and insult the judge’s intelligence.

Peter Seebach

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Comments

  1. That's a nice bird.

    — seebs_lawyer · 2005-09-01 20:45 · #

  2. Just out of curiousity, why do you invert the images left/right?
    I assume the immediate purpose is to make sure you're not posting an exact copy of an image that exists somewhere else, but it's not immediately clear what the reason for not doing that would be.

    — dave · 2005-09-07 08:23 · #

  3. Kudos for publishing what's going on with a class action. I have so many bad things to say about class action lawyers, most are in it only for legal fees for a worthless settlement such as some discount of future ripoff services or a few bucks for the named plaintiffs. So, thanks for not selling out.

    I focus on banking fraud and the faxes mostly interest me because of the fraudulent advertising, see http://creditsuit.org/credit.php?/blog/comments/housing_sales_slowdown_californians_house_poor_mortgage_fraud_rampant/

    The government could stop all the mortgage faxes IMMEDIATELY by enforcing mortgage advertising regs. Fat chance ... people getting ripped off is good for the economy, it's about all that keeps it going.

    Is Source Lending still in business? Google got me nothing but your posting.

    Christine Baker · 2005-09-07 19:14 · #

  4. Years later, I realize I never did clarify:

    1. I have no idea whether Source is in business now, but I’d doubt it.
    2. The images were altered because I was flipping them the bird.

    seebs · 2012-06-28 11:34 · #

 
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