Declaration

Cal. Super. - 6th Dist.December 7, 2020

KOOOQONUl-RUJNH NNNNNNNNNr-‘r-‘r-‘r-‘r-ir-‘Hr-Ar-‘r-A OONONUI-PUJNHOKOOOQONUI-RUJNHO 200V37391 6 Santa Clara - Civil Fred W. Schwinn (SBN 225575) Raeon R. Roulston (SBN 255622) Matthew C. Salmonsen (SBN 302854) CONSUMER LAW CENTER, INC. 1435 K011 Circle, Suite 104 San Jose, California 95 1 12-4610 Telephone Number: (408) 294-6100 Facsimile Number: (408) 294-6190 Email Address: fred.schwinn@sjconsumerlaw.com Attorneys for Plaintiff Electronically Filed by Superior Court of CA, County of Santa Clara, on 1/14/2022 5:12 PM Reviewed By: R. Walker Case #20CV37391 6 Envelope: 8068320 DAVID CHAI SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA DAVID CHAI, individually and 0n behalf Case No. 20CV373916 of all others similarly situated, (Unlimited Civil Case) Plaintiff, Assigned for A11 Purposes t0 V' The Honorable Patricia M. Lucas VELOCITY INVESTMENTS, LLC, a New Jersey limited liability company; VELOCITY PORTFOLIO GROUP, INC, a Delaware corporation; and DOES 1 through 10, inclusive, I, Fred W. Schwinn, declare under penalty of perjury, under the laws of the State of California, that the following statements are true: 1. I am an attorney at law duly licensed t0 practice before all the courts 0f the State 0f California and am a shareholder in the law firm Consumer Law Center, Inc., attorneys of record for Plaintiff and proposed Class Representative, DAVID CHAI. 2. I have personal knowledge 0f the following facts, and if called as a Witness, I could and would competently testify thereto. Hearing Date: Defendants. Hearing Time: Hearing Dept: Hearing Location: 191 North First Street DECLARATION OF FRED W. SCHWINN IN SUPPORT OF PLAINTIFF’S MOTION FOR CLASS CERTIFICATION February 23, 2022 1:30 p.m. 3 San Jose, California DECLARATION OF FRED W. SCHWINN Case No. 20CV373916 KOOOQONUl-RUJNH NNNNNNNNNr-‘r-‘r-‘r-‘r-ir-‘Hr-Ar-‘r-A OONONUI-PUJNHOKOOOQONUI-RUJNHO ADEOUACY OF COUNSEL 3. I am a member in good standing 0f the bars 0f the following courts: Supreme Court 0f the United States Washington, DC 2003 Supreme Court 0f California Sacramento, California 2003 Supreme Court 0f Kansas Topeka, Kansas 1997 (Inactive) U.S. Court of Appeals for the Tenth Circuit Denver, Colorado 1999 U.S. Court 0f Appeals for the Ninth Circuit San Francisco, California 2003 U.S. District Court for the District of Kansas Topeka, Kansas 1997 (Inactive) U.S. District Court for the Western District of Missouri Jefferson City, Missouri 2001 (Inactive) U.S. District Court for the Northern District 0f California San Francisco, California 2003 U.S. District Court for the Eastern District of California Sacramento, California 2003 U.S. District Court for the Central District 0f California Los Angeles, California 2003 /// DECLARATION OF FRED W. SCHWINN Case No. 20CV373916 KOOOQONUl-RUJNH NNNNNNNNNr-‘r-‘r-‘r-‘r-ir-‘Hr-Ar-‘r-A OONONUI-PUJNHOKOOOQONUI-RUJNHO U.S. District Court for the Southern District of California San Diego, California 2009 4. I am a 1994 graduate magna cum laude 0f Washburn University in Topeka, Kansas, and a 1997 graduate of Washburn University School 0f Law. In 1995, I passed the Uniform Certified Public Accountant’s examination and was granted a Certified Public Accountant certificate from the Kansas Board of Accountancy. I am a member of the State Bar 0f California, Santa Clara County Bar Association, National Association of Consumer Advocates, National Association 0f Consumer Bankruptcy Attorneys, California Bankruptcy Forum, and a former member 0f the Topeka Area Bankruptcy Council, 0f Which I am a past Treasurer. 5. From September 26, 1997, until December 21, 2003, I maintained a private law practice With an office located in Topeka, Kansas. In December of 2003, I relocated my law practice t0 California. My practice is limited exclusively t0 the representation 0f consumers, with particular emphasis 0n representing consumer under the federal Fair Debt Collection Practices Act, California Rosenthal Fair Debt Collection Practices Act, California Fair Debt Buying Practices Act, Truth in Lending Act, California Rees-Levering Automobile Sales Finance Act, and other laws enacted t0 protect consumers. My firm, the Consumer Law Center, Inc., undertakes representation in many consumer cases With the expectation 0f being paid a contingency amount from the proceeds 0f recovery, 0r being paid based on an award 0f fees pursuant t0 fee shifting statutes such as the federal Fair Debt Collection Practices Act, California Rosenthal Fair Debt Collection Practices Act, California Fair Debt Buying Practices Act, Truth in Lending Act, California Rees-Levering Automobile Sales Finance Act and California Unruh Act. 6. I have given a number of lectures t0 consumers and professional groups on consumer law issues, including the Volunteer Legal Service Program of The Bar Association of San DECLARATION OF FRED W. SCHWINN Case N0. 20CV373916 KOOOQONUl-RUJNH NNNNNNNNNr-‘r-‘r-‘r-‘r-ir-‘Hr-Ar-‘r-A OONONUI-PUJNHOKOOOQONUI-RUJNHO Francisco, Community Legal Services in East Palo Alto, Pro Bono Project and Fair Housing Law Project in San Jose, California. 7. I was honored as “Attorney of the Year” in 2013 by Community Legal Services in East Palo Alto. I was also honored as “Outstanding Volunteer Attorney” in 2011 and 2012 by the Volunteer Legal Services Program 0f the San Francisco County Bar Association. My firm was also recently honored with the “2019 Outstanding Volunteer Award” by the Pro Bono Proj ect Silicon Valley for our support of their Bankruptcy and Debtor’s Rights Clinics. 8. I have been a member 0f the National Association of Consumer Advocates since 1999 and have attended at least fifteen (15) national conferences exclusively 011 consumer law issues. 9. I have an “AV Preeminent” rating by Martindale-Hubbell’s Peer Review Ratings system every year from 2012 through 2021. I also have a “Superb Rating” by AVVOI from 2011 through 2021, with a perfect 10.0 rating each year. 10. I have been interviewed, and quoted, by the New York Times, San Jose Mercury News, California Lawyer magazine, California Watch, Bay City News Foundation, and The Pacific Northwest Inlander. Ihave assisted numerous consumers in both chapter 7 and chapter 13 bankruptcies, and been involved in many consumer cases involving a range of consumer protection laws. I have handled several cases that have resulted in reported decisions favorable t0 consumers including: CALIFORNIA SUPREME COURT - Meza v. Portfolio Recovery Assocs., LLC, 6 Cal. 5th 844 (Cal. 2019) (CiV. Proc. Code § 98(a) requires affiant’s personal presence at location within 150 miles 0f place 0f trial for a reasonable period Within the 20 days prior t0 trial if personal service 0f trial subpoena would ordinarily be necessary t0 secure that affiant’s attendance at trial). APPELLATE COURTS o Timlick v. Nat’l Enter. Sys., Ina, _Cal. App. 5th_ (Cal. App. lst Dist. 2021) (trial court had jurisdiction t0 hear and grant renewed discovery motion that was pending When order 1 See http://WWW.aVV0.com/attorneys/95 1 13 -ca-frederick-schwinn-3 6 1 966.htm1 _ 4 _ DECLARATION OF FRED W. SCHWINN Case No. 20CV373916 KOOOQONUl-RUJNH NNNNNNNNNr-‘r-‘r-‘r-‘r-ir-‘Hr-Ar-‘r-A OONONUI-PUJNHOKOOOQONUI-RUJNHO granting summary judgment motion, Which was later reversed 0n appeal, was entered). Davis v. Mandarich Law Grp., 790 F. App’x 877 (9th Cir. 2020) (reversing and remanding FDCPA judgment for Defendants). Meza v. Portfolio Recovery Assocs., LLC, 762 F. App’x 431 (9th Cir. 2019) (vacating and remanding district court’s summary judgment order dismissing FDCPA class-action claims). Timlick v. Nat’l Enter. Sys., Ina, 35 Cal. App. 5th 674 (Cal. App. lst Dist. 2019) (debt collector cannot unilaterally “pick 0ft” the named plaintiff and avoid class action litigation). Professional Collection Consultants v. Lujan, 23 Cal. App. 5th 685 (Cal. App. lst Dist. 2018) (Delaware 3-year statute 0f limitations applies in California debt buyer’s collection cases). Meza v. Portfolio Recovery Assocs., LLC, 860 F.3d 1218 (9th Cir. June 22, 2017) (certifying question of state law to California Supreme Court). Professional Collection Consultants v. Lauron, 8 Cal. App. 5th 958, (Cal. App. 6th Dist. Feb. 16, 2017) (Delaware’s 3 year statute 0f limitations applies in California debt buyer’s collection cases). Tye v. Salomon (In re Salomon), 2016 U.S. App. LEXIS 23221 (9th Cir. Dec. 23, 2016) (affirming denial of motion to extend time for filing appeal). Johnson v. CFS II, Ina, 628 Fed. Appx. 505 (9th Cir. 2016) (affirming denial of debt collector’s motion for leave t0 file motion for reconsideration, affirming attorney fee award to consumer). Lauron v. Prof’l Collection Consultants, 2014 Cal. App. Unpub. LEXIS 8983 (Cal. App. 6th Dist. Dec. 18, 2014) (denying debt collectors’ interlocutory appeal). Lujan v. Prof’l Collection Consultants, 2014 Cal. App. Unpub. LEXIS 8555 (Cal. App. 1st Dist. NOV. 26, 2014) (denying debt collectors’ interlocutory appeal). Tye v. Salomon (In re Salomon), 2014 Bankr. LEXIS 897 (B.A.P. 9th Cir. Mar. 7, 2014) (affirming denial 0f motion t0 extend time for filing appeal). Target National Bank v. Rocha, 216 Cal App. 4th Supp. 1 (Cal. Super. Ct. 2013) (holding that Code 0f Civil Procedure § 98 declarants must be physically present within 150 miles 0f the place of trial). Riggs v. Prober & Raphael, 681 F.3d 1097 (9th Cir. 2012) (holding that an initial debt collection letter violates 15 U.S.C. § 1692g(a)(3) only if it explicitly requires disputes in writing). Cruz v. Int’l Collection Corp, 673 F.3d 991 (9th Cir. 2012) (collection agency owner qualified as a debt collector, and his personal acts were sufficient to render him liable for Violations of the FDCPA). Fontaine v. Superior Court, 175 Cal. App. 4th 830 (Cal. App. 6th Dist. 2009) (Peremptory writ 0f mandate was issued. Venue proper in Santa Clara County pursuant t0 California Code 0f Civil Procedure § 395(b)). Resurgence Financial, LLC v. Chambers, 173 Cal. App. 4th Supp. 1 (Cal. Super. Ct. 2009) (Superior Court erred in failing to apply Delaware’s three year statute of limitations required by contract choice-of-law clause). Giovannoni v. Bidna & Keys, 255 Fed. Appx. 124, 2007 U.S. App. LEXIS 26242 (9th Cir. October 17, 2007) (District Court erred in failing t0 award non-taxable costs under FDCPA, 15 U.S.C. § 1692k(a)(3)). Ramirez v. Household Fin. Corp. III (In re Ramirez), 329 B.R. 727 (D. Kan. 2005) (affirming Bankruptcy Court’s rescission 0f mortgage loan under the Truth in Lending Act). Ed Bozarth Chevrolet, Inc. v. Black, 96 P.3d 272 (Kan. Ct. App. 2003) (spot delivery agreements d0 not Violate Kansas law). DECLARATION OF FRED W. SCHWINN Case N0. 20CV373916 KOOOQONUl-RUJNH NNNNNNNNNr-‘r-‘r-‘r-‘r-ir-‘Hr-Ar-‘r-A OONONUI-PUJNHOKOOOQONUI-RUJNHO Green v. Kan. City Power & Light C0. (In re Green), 281 B.R. 699 (D. Kan. 2002) (remanding Bankruptcy Court decision granting summary judgment for determination 0f “aggrieved consumer” status under the Kansas Consumer Protection Act). U.S. DISTRICT COURTS (previous five years only) Griego v. Tehama Law G171, P.C., 2020 U.S. Dist. LEXIS 152306 (N.D. Cal. Aug. 21, 2020) (granting motion t0 remand Rosenthal case). Credit Consulting Servs. v. Scott, 2019 U.S. Dist. LEXIS 29660 (N.D. Cal. Feb. 25, 2019) (granting motion to remand FDCPA class action cross-complaint). Izett v. Crown Asset Mgmt., LLC, 2018 U.S. Dist. LEXIS 211459 (N.D. Cal. Dec. 14, 2018) (granting motion to strike affirmative defenses in FDCPA case). Timlick v. Nat'l Enter. Sys., 2017 U.S. Dist. LEXIS 130921 (N.D. Cal. Aug. 16, 2017) (granting motion t0 remand RFDCPA class action case). Carlson v. Gatestone & C0. Int’l, Ina, 2017 U.S. Dist. LEXIS 93348 (ND. Cal. June 16, 2017) (granting motion to remand RFDCPA class action case). Garcia v. Stanley, 2017 U.S. Dist. LEXIS 32550 (N.D. Cal. Mar. 7, 2017) (granting motion for attorney fees and costs in FDCPA case). Jacobson v. Persolve, LLC, 2016 U.S. Dist. LEXIS 173058 (ND. Cal. Dec. 14, 2016) (granting motion for attorney fees and costs in FDCPA case). Garcia v. Creditors Specially Seru, 2016 U.S. Dist. LEXIS 159686 (ND. Cal. NOV. 16, 2016) (granting summary judgment in a FDCPA case). Ciganek v. Portfolio Recovery Assocs., LLC, 2016 U.S. Dist. LEXIS 74905 (N.D. Cal. June 7, 2016) (construing Cal. Code of Civil Procedure § 98). Datta v. Asset Recovery Solutions, LLC, 2016 U.S. Dist. LEXIS 36446 (ND. Cal. Mar. 18, 2016) (granting class certification under Rule 23(b)(3) in a FDCPA class action case). U.S. BANKRUPTCY COURTS Tye v. Salomon (In re Salomon), 2013 Bankr. LEXIS 354 (Bankr. N.D. Cal. Jan. 29, 2013) (granting discharge in non-discharageability case). Cushing v. Household Fin. Corp. III (In re Cushing), 2005 Bankr. LEXIS 99 (Bankr. D. Kan. Jan. 21, 2005) (Truth in Lending Act rescission denied). Merriman v. Beneficial Mortg. (In re Merriman), 329 B.R. 710 (D. Kan. 2005) (finding Violations 0f the Truth in Lending Act and granting rescission 0fhome mortgage loan). Quenzer v. Advanta Mortg. Corp. USA (In re Quenzer), 2005 Bankr. LEXIS 2627 (Bankr. D. Kan. Dec. 22, 2005) (denying lender’s request for post-rescission interest under Truth in Lending Act). Sinclair v. Wash. Mut. Home Loans, Inc. (In re Sinclair), 2004 Bankr. LEXIS 1415 (Bankr. D. Kan. Aug. 16, 2004) (denying lender leave t0 assert affirmative defense in Truth in Lending Act case). Finch v. Household Fin. Corp. III (In re Finch), 2003 Bankr. LEXIS 2049 (Bankr. D. Kan. NOV. 7, 2003) (finding Violations of the Truth in Lending Act and granting rescission of home mortgage loan). Bilal v. Household Finance Corporation III (In re Bilal), 296 B.R. 828 (D. Kan. 2003) (holding -6- DECLARATION OF FRED W. SCHWINN Case N0. 20CV373916 KOOOQONUl-RUJNH NNNNNNNNNr-‘r-‘r-‘r-‘r-ir-‘Hr-Ar-‘r-A OONONUI-PUJNHOKOOOQONUI-RUJNHO that the inclusion 0f language in a Chapter 13 Plan Which rescinds a home mortgage loan under the Truth in Lending Act is binding on a mortgage creditor who fails t0 object before confirmation). Nave v. Commun. Am. Credit Union (In re Nave), 303 B.R. 223 (Bankr. D. Kan. 2003) (credit life insurance premiums paid monthly are not included in “amount financed” under the Truth in Lending Act). Quenzer v. Advanta Mortg. Corp. United States, 288 B.R. 884 (D. Kan. 2003) (equitable principles apply in Truth in Lending Act rescission). Ramirez v. Household Finance Corporation III (In re Ramirez), 2003 Bankr. LEXIS 1364 (D. Kan. 2003) (finding Violations of the Truth in Lending Act and granting rescission of home mortgage loan). In re Green, 287 B.R. 827 (D. Kan. 2002) (holding that the inclusion 0f language in a Chapter 13 Plan which attempts t0 discharge student loans should be reviewed on a case-by-case basis). In re Crosby, 261 B.R. 470 (D. Kan. 2001) (holding that the issuance 0f a Form 1099-C by a creditor forgives the debt). Quenzer v. Advanta Mortg. Corp. (In re Quenzer), 274 B.R. 899 (Bankr. D. Kan. 2001) (finding Violations of the Truth in Lending Act and granting rescission 0fhome mortgage loan). Quenzer v. Advanta Mortg. Corp. (In re Quenzer), 266 B.R. 760 (Bankr. D. Kan. 2001) (voiding lien after Truth in Lending Act rescission). 11. Ihave been approved and appointed as adequate class counsel in several consumer class action cases including: Case Name Court Case N0. / Date Judge Leedeman v. Sunrise Credit Services, Inc. Santa Clara County 19CV342137 Lucas (June 9, 2021) Timlick v. NCB Management Services, Lake County CIV-416919 Lunas Inc. (February 2, 2021) Chambers v. Merchants & Medical Credit Santa Clara County 18-CV-324210 Kulkarni Corporation, Inc. (November 23, 2020) Brady v. Patenaude & Felix, APC Santa Clara County 18-CV-338737 Lucas (August 25, 2020) Credit Consulting Services, Inc. v. Scott San Benito County CL-18-00541 Rodriguez (January 9, 2020) Pajarit v. Grassy Sprain Group, Inc. San Mateo County 18-CIV-05015 Weiner (November 18, 2019) Scribner v. Simm Assocs., Ina, et al. Santa Clara County 17-CV-3 12803 Kuhnle (October 7, 2019) Guzman v. Mandarich Law Group, LLP, Santa Clara County 18-CV-322871 Walsh et al. (August 16, 2019) _ 7 _ DECLARATION OF FRED W. SCHWINN Case No. 20CV373916 \OOOflOUl-RUJNr-A NNNNNNNNNr-tr-tr-tr-tr-tr-‘r-‘r-Ab-‘r-A OOQONUI-PUJNHOKOOOfloUl-PUJNF-‘O Homer v. Crown Asset Management, LLC Santa Clara County 17-CV-315221 Kuhnle (March 8, 2019) Carlson v. Gatestone & C0. International, Santa Clara County 17-CV-306698 Kuhnle Ina, et al. (November 30, 2018) Lock v. Global Credit & Collection Santa Clara County 2015-1-CV-283297 Kuhnle Corporation, et a1. (November 13, 2018) Corso v. ML. Zager, P. C., et al. Santa Clara County 16-CV-298607 Kirwan (June 29, 2018) Atlantic Credit & Finance Special Santa Cruz County CIS-CV-182328 Burdick Finance Unit III, LLC v. Nevarez, et al. (June 25, 2018) Davis v. Cavalry SPVI, LLC Santa Clara County 2016-1-CV-301730 Kuhnle (April 2, 2018) Datta v. Asset Recovery Solutions, LLC Northern District of 5:15-CV-00188-LHK Koh California (January 13, 2017) Jacobson v. Persolve, LLC Northern District 0f 5:14-CV-00735-LHK Koh California (June 7, 2016) Gold v. Midland Credit Management, Inc Northern District 0f 5: 13-CV-02019-BLF Freeman California (October 7, 2014) Luxford v. Resurgent Capital Services, LP Northern District 0f 5:09-CV-02809-JF Fogel California (April 22, 201 1) Arroyo v. Professional Recovery Services, Eastern District of 1:09-CV-00750-LJO O’Neil Inc. California (November 13, 2009) Silva v. Patenaude & Felix, APC Northern District of 5:08-CV-O3019-JW Ware California (August 3 1 , 2009) Carrizosa v. Stassinos Northern District 0f 5:05-CV-02280-RMW Whyte California (March 30, 2009) Executed this 14th day 0f January, 2022, at San Jose, California.fl Fred W. Schwinn DECLARATION OF FRED W. SCHWINN Case No. 20CV373916