Anything you say can and will be used against you in a court of law

One of the themes of this blog is playing defensive ball, and not letting the other side rack up easy points from unforced errors. So lets look at a fair debt collection practices act case that teaches pro-se plaintiffs in particular to stop self snitching, Scroggin v. Credit Bureau of Jonesboro, Inc., 973 F. Supp. 2d 961, 966 (E.D. Ark. 2013).

If you are suing a telemarketer or debt collector, you probably don't like them. I would hazard to guess that many plaintiffs of all stripes don't like many defendants, and probably wish them all sorts of ills. But never forget, court is theater, perception is reality, lawsuits are a popularity contest, and judges base a lot of who wins and who loses on who the judge likes.

This lawsuit opinion is very lengthy, and I'll just quote a bit of it, but it gives an idea of what self snitching the court latched onto to spank the mouthy plaintiff. But of course some background. Scroggin sued Credit Bureau of Jonesboro ("CBJ") alleging violations of the Fair Debt Collection Practices Act for attempting to collect a medical debt. While the lawsuit was going on, Scroggins was posting on websites, and it seems, Scroggins made no secret of doing it. "the Court informed Scroggin that with the exception of references to offers of settlement, Scroggin's posts and any future similar posts identified by CBJ would be admitted into evidence"

Scroggins took CBJ to a jury trial and won in the technical sense - he won the verdict but the jury did not award Scroggin any actual or statutory damages for CBJ's violations of the FDCPA. CBJ then came back at Scroggins for attorney's fees and costs on the grounds that Scroggin brought this action in bad faith and for the purpose of harassment, and asked the court for about $32k from Scroggin.

Scroggins gave CBJ a lot of material to work with "Along with his emails, the Court admitted into evidence over 6,500 of Sroggin's posts (with references to settlement redacted) pursuant to Fed.R.Evid. 801(d)(2) as statements by a party opponent." The court found "Scroggin's posts and emails as set forth below (with misspellings and grammatical errors left intact) fully support a finding that Scroggin brought this action in bad faith and for the purpose of harassment." The upshot being: "Prior to filing this action, Scroggin stated that he wanted to maximize the retaliation to CBJ, do some damage, and hopefully goad or force CBJ to an actual trial".

However, since the last agency just folded, bent over and grabbed their ankles and said do with us as you please, I've decided to “step my game up” and let's try to send a little clearer message that these violations will not be tolerated. I mean how much dadgum emotional distress is a person supposed to endure. So, since I will obviously whip the dog out of them and defeat is not even a remote option (if you don't believe me just ask me), it's just a matter of how bad and for how much at this point. I want to maximize the retaliation, do some damage and hopefully goad and/or force them to an actual trial.

Warning: Part of Scroggin running his mouth included how he built his case. The court didn't like it at all:

As part of his scheme to damage CBJ, Scroggin “set up” CBJ into violating the FDCPA and AFDCPA by sending a purposely ambiguous C & D letter to CBJ that contained not only a refusal to pay but also Scroggin's explanation of why he didn't think he owed the debt in question . . . Scroggin's efforts to set up CBJ succeeded as his ambiguous C & D letter had the effect of prompting CBJ to make contact with him to explain why he owed the debt. In this respect, Scroggin, who described CBJ's voice mail that was listened to by friend Kirby Wilson as “an early Christmas present,”

It is very common for judges not to like how you built your case and be very willing to ignore the illegal actions of the defendants. Keep how and why you built your case to yourself. Are you using a defendants bad litigation tactics against them? Keep it to yourself:

[I]'m forcing them into a Saturday deposition because their time is running out and now their available dates don't work with my busy schedule, but I have seven unreturned attempts trying to schedule a depo when I knew they were just bluffing . . . So now they will do things on my schedule and I can promise you it will be a full blown three ring circus when that deposition get rolling.

CBJ blew off 7 deposition dates so Scroggins turned it to his advantage. But Scroggins talked about it and who did the judge spank? The defendant who blew off 7 deposition dates, or Scroggins for turning it to his advantage? The court spanked the guy who opened his mouth. Keep it to yourself. "while I will turn this into a circus I still will make sure to concentrate on making sure I don't say anything that hurts my case." Dur!

Judges don't generally like fair debt collection practices act plaintiffs, they generally don't like pro-se plaintiffs, and they generally don't like pro-se fair debt collection practices act plaintiffs. And a judge like that doesn't like this plaintiff creating more air debt collection practices act plaintiffs.

Scroggin also advised another forum member on how to manipulate a claim for damages: Seriously, go to the doctor and complain of stress. When the doctor and/or nurse asks you what different events have been happening in your life, unload on them about this collection crap. They will note it in your chart and I can assure you that you will be glad you did a few years later if this gets close to trial!!!!!

Something to not say in a deposition, even if the sentiment is real because the defendant has made your life miserable for years: "I even said I have different levels of emotional distress and that I was also suing for just plain old pissing me off". And things not to post in public, even if the sentiment is real because the defendant has made your life miserable for years:

I wanted her to be real clear that the depo might have been scheduled as an intimidation tactic, but that plan, just two minutes in, had failed miserably and the next three hours were going to be a total nightmare. * * * I don't know if I did enough to goad them into a trial but I pulled every arrogant one liner I could and was just daring them to a trial. Rest assured I did everything humanly possible to piss them off enough to abandon common sense and throw the checkbook out and try to show me. * * * Now they are stuck. They have tons of money tied up, they now have a pissed off insurance company that I'm sure is getting ready to put an end to this circus and mostly I'm daring them into a trial. Wait until you see the video. I give new meaning to arrogance. I am just saying please take this to trial, but I'm trying to make them throw caution to the wind and say we will show this guy. However, I know how to act in court and I can play the role of the beat down consumer just as I can the arrogant come at me pro litigator. * * * They will lose and I will win, but how much and when are still the only thing to be decided. I'm just too damn crazy to care and they know it. They let this get away from them and now it's a full blown circus and they just don't know what to do and I'm loving ever min of it. I don't care if I get a grand at trial. I just want a trial and they know I'm not just saying that, and that' what makes me so dangerous.

These are all things parties and their lawyers think, but they don't write down. In theory you have a right to a public trial. Cases go to trial all the time that could have been settled or resolved on summary judgment because people want their public day in court. But you can't go around saying that.

Scroggin also stated he was determined to take this matter to trial notwithstanding its impact on his damages and even though he believed he could win on summary judgment. Scroggin stated: [N]o summary judgement is going to be filed or they better not be filed. The date [for filing dispositive motions] was extended but I told the attorney no way team Coltfan was to file any type of summary judgement, after the depo, because we will win it and I don't want it to end that easy. Honestly I think I win more with an offer of judgement or at trial and not at summary judgement. Summary judgement is too easy of a victory and I think they want that.

When you have a good case against a telemarketer or debt collector, deep down inside you might feel a sense of satisfaction that the defendant who made you miserable for years is getting it back in their face. Tell your spouse. Tell your lawyer. Tell your doctor. Tell your priest. Tell your therapist. For the love of god and all that is holy, don't tell the internet:

Scroggin also boasted that the FDCPA essentially allowed him to continue this action for his entertainment and to harass CBJ and its counsel. For instance, Scroggin stated: She [CBJ's counsel] actually looked like I just gave her a gift by volunteering my posting handle. She is going to be very disappointed when the motion in limine restricts her from even letting a skunk loose in the courtroom.... God, I love strict liability when the FDCPA violation is not even disputed. A mandatory award is required, even if a dollar, if I win at trial and then that triggers all costs for them to pay and even if the unthinkable happened and I lost, it's obvious it's not a bad faith suit so they can't collect any fees from me. I can just sit back and be as arrogant as I want and they can't do a damn thing about it.

A good rule of thumb for all communication outside of your spouse, lawyer, doctor, therapist, or priest, is imagine the judge is listening. If you would not say it in front of the judge, don't say it!

Almost nobody but some judges like telemarketers and debt collectors. Just about everyone would be happy if those people picked up and went home. Lots of people would help them pack. But you can't let the court know this.

In front of the judge you have to pretend to be a disinterested party with no personal feelings about the defendant.

I'm not going to take down this industry no more than suing the tabocco industry takes out the tabocco industry. What I am going to do and have been doing is put a deep dent in the pocket book of this agency. I'd tell you the figures I've turned down to settle but of course you would not believe me and then if I provided the emails you would say they are fake. I'm driving a mack truck into this one agency [CBJ] checkbook, insurance premiums, lost revenue from time dedicated to this suit, making it a public record in a relatively small town where any other attorney in the country that goes to Pacer can see this agency has lost (which they will lose) * * * 10K is not chump change and then there are now atty fees on both sides. Plus there is the chance of a runaway jury verdict that could I fully admit get overturned but exceed the policy limits of 100K and now to get that overturned you're out a ton. If you even dream about violating my rights under the FDCPA the first thing you do is better apologize and pray I don't sue you for even dreaming about it. Deal with it. I'm going to win and it is going to cost a lot more than you guys are acting like nobody cares about. * * * I'm going to keep doing it over and over and over and over and over again. Getting behind on bills does not give somebody a license to treat others like garbage. And they screwed with the wrong person because I'm smart, I'm determined and you know what you just said it yourself I can get under your skin. I know the buttons to push and I know when to back off and when to push hard. Watch the video. If it is an important question I get serious and go at it with yes or no and a dead stare.

If you have an improper relationship with an attorney, keep it to yourself:

We had several cases ready to file and/or send demands. I was doing all the work, pleadings, etc.. and she was signing off. I'm not sure now. I hate, hate, hate bluffing on this type of stuff and I see that being the way these will be handled. There is no way we can go to court on a few of these cases ... I just can't stand to bluff and then somebody call it and then I know we can't do what we say or go to court with them. She said before hiring me she was settling these for around 500.00 to 1K and with me wanted to triple that. You should have seen me on the witness stand just dead staring into my attorney's eyes while answering irrelevant questions from the stand. I was feeding her the objections from the stand by answering the question by saying, “Well the question is irrelevant, argumentative, and asks me to speculate, pause, pause, pause, pause, cough, get a drink of water, but to answer your question,” then give the answer.

All these quotes was really just Scroggin saying what a lot of people in litigation who hate each other are thinking. But it let the court draw this conclusion:

There are, as previously noted, additional posts and emails in the record but Scroggin's conduct as outlined above illustrates the depth of Scroggin's dishonesty of belief or purpose, his dishonest and oppressive conduct, his hatred, ill will, and spirit of revenge towards CBJ before and after the filing of this action, and his intent to, at a minimum, annoy CBJ persistently with no legitimate purpose. This action was never about Scroggin seeking legitimate redress for what he perceived to be violations of statutes meant to protect consumers but was a vehicle for Scroggin to pursue a vendetta against CBJ and for his own entertainment (after successfully setting up CBJ into violating the FDCPA and AFDCPA) while at the same time generating attorney's fees for himself and his attorney/employer. Scroggin demeaned and abused the judicial process and he perverted the purposes of the FDCPA and AFDCPA.

Even if the court didn't spank him, the jury did by giving him the victory but awarding no damages. By all accounts CBJ had a loser of a case, but they turned the trial from being about what they did, to being about Scroggin's conduct and it worked on the jury and it worked on the judge:

subjecting Scroggin to liability for CBJ's attorney's fees and costs under 15 U.S.C. § 1692k(a)(3) and Ark.Code. Ann. § 17–24–512(a)(3)(B) will deter others who, in Scroggin's words, believe that they can “set up” a debt collector into violating the FDCPA or AFDCPA and use the judicial process to “maximize the retaliation, do some damage and hopefully goad and/or force [the debt collector] to an actual trial,” “play the role of the beat down consumer” in court, and attempt to collect damages and attorney's fees for technical and harmless violations, all while “having the time of their life.”

The bias in judges is clear. This judge wants to send a message to anyone who would “play the role of the beat down consumer” but does that judge have the same opinion of ADA and fair housing 'testers' who lose in court? These defendants who actually lost weren't spanked to deter others who didn't suffer an actual injury from filing: Cohan v. Kohl's Inc., 23 C 5081, 9 (N.D. Ill. Aug. 15, 2024), Laufer v. Looper, 22 F.4th 871, 883 (10th Cir. 2022), Floyd v. Insight Glob., 23-cv-1680-BJR, (W.D. Wash. Apr. 25, 2024). They weren't spanked because judges usually like those kinds of plaintiffs and those plaintiffs didn't have 6,500 posts talking about how they hated the defendants. If you are a pro-se plaintiff with a case judges don't like, you have to be on your best behavior at all times.

Have I convinced you to keep your evidence and motives to yourself, and to always project a professional image outside of communicating with your spouse, therapist, doctor, priest, or attorney?

Would you like a free case review? Do you have a question or a telemarketing, debt collection, or bankruptcy case that would make a great blog article? We might even review your pro-se complaint or motion in a blog post. Email peter@nwdebtresolution.com and/or nathen@nwdebtresolution.com and we may answer it for everyone!

Are telemarketers harassing you in Washington, Oregon, or Montana? My Washington State TCPA plaintiff law practice can help, just give us a call at 206-800-6000 or email peter@nwdebtresolution.com.

The thoughts, opinions and musings of this blog are those of Peter Schneider, a consumer advocate and Washington State plaintiff's TCPA attorney at Northwest Debt Resolution, LLC. They are just that, his thoughts, opinions and musings and should be treated as such. They are not legal advice. If you are looking to file a lawsuit for TCPA violations and unwanted calls please contact me for a consultation.

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