Thursday, May 24, 2012

Discover Bank Record Falsification Basis for Civil RICO Act Claims

A law firm in Pennsylvania recently filed a RICO class action against Discover Bank alleging systematic, nationwide litigation fraud through the use of falsified documents.

The specific conduct alleged in the lawsuit actually seems to occur in the bulk of credit-card lawsuits brought by every original creditor.  In any jurisdiction, to get a judgment in such a case, at some point the creditor must provide a copy of a putative cardmember agreement.  In almost every case, the creditor appears to provide basically a copy of the agreement it happened to be using for new accounts during some year that the account was open, often the last year it was open.  Then the creditor submits a records custodian's affidavit that states tersely that the exhibit attached is "a copy of the terms and conditions governing the account."

But it is indeed not.  To illustrate, if a debtor opened an account in 2008, they should have received a copy of a complete cardmember agreement in force in 2008.  The agreement may be modified from time to time, in which case the creditor should mail a copy of each amendment.  No creditor sends a complete new, revised copy of the agreement.  Thus, if the creditor provides a complete new, revised 2011 cardmember agreement and says that's the agreement that governed the account, that's just a complete, bald-faced falsehood.  It's not specific to Discover Bank.  Indeed, the same law firm has filed and settled numerous suits against other creditors based on the same behavior.  

We suggest that another fraudulent pattern of behavior on the part of credit-card plaintiffs is ripe for a RICO class action.  That is the use of falsified account statements.  It is occasionally obvious that account statements are fake, but most fakes are sophisticated enough that it is not obvious.  One situation where it is obvious, though, is where the account holder has moved during the time period covered by the account statements.  In those cases, generally what we see is that the creditor submits to the court as "true copies of the account statements sent to the defendant" accounts statements that all contain the current address, where the defendant did not live or receive mail during the first months covered.  This reveals that what the creditor has actually done is to essentially merge whatever is currently in its database into a form to generate current account statements.  The statements cannot purport to be "copies" of something mailed to the debtor (as required to make out an "account stated" claim), but are instead falsely described in those terms in the custodian's affidavit.

Contact me if you have received such an affidavit and exhibits in New York.  Provided you can defeat the creditor's suit, you may be able to turn around and sue them in a class action.

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