In re Zenner

560 S.E.2d 406, 348 S.C. 499, 2002 S.C. LEXIS 29
CourtSupreme Court of South Carolina
DecidedFebruary 25, 2002
DocketNo. 25418
StatusPublished
Cited by1 cases

This text of 560 S.E.2d 406 (In re Zenner) is published on Counsel Stack Legal Research, covering Supreme Court of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Zenner, 560 S.E.2d 406, 348 S.C. 499, 2002 S.C. LEXIS 29 (S.C. 2002).

Opinion

PER CURIAM.

In this attorney disciplinary matter, the Commission on Lawyer Conduct filed formal charges against respondent. Respondent filed a response and later agreed to a stipulation of facts. After a hearing, the Panel recommended respondent be given a public reprimand.

FACTUAL BACKGROUND

The charges against respondent stem from his involvement with a collection agency, the Collect America Network. U.S. Collections, a franchise of Collect America, and the Zenner Law Firm entered into a contract on February 16, 2000.

Refinance America, a wholly owned subsidiary of Collect America, purchased uncollected debt from, for example, credit card companies and forwarded it to Collect America, who then forwarded it to respondent’s firm. Collect America would send batches of these accounts in contract form. According to the accounts contract, a placement of the amount with respondent’s firm was made for a limited period of 120 days for a contingency fee of twenty-five percent (25%) of any recovered funds.

Collect America operated with two types of franchise agreements, including one in which a private corporation, for example U.S. Collections, bought the franchise and the license to use a particular software (STARS) to collect the debt. As a franchise, U.S. Collections was required to retain an attorney, such as respondent, to collect the debt.

U.S. Collections employed collectors and paid them through respondent’s payroll account.1 Further, U.S. Collections [501]*501owned the computers and telephones, and provided respondent with an office for his private practice, adjacent to the property leased by U.S. Collections. All collectors made telephone calls to debtors, identifying themselves as “Zenner Law Firm,” in the adjacent building.2

Each collector was required to generate collections of $30,000 each month. They were paid a base salary and received a bonus of a percentage of any excess collected over $30,000.

Respondent’s first contract with U.S. Collections allowed him ten percent of the total amounts collected and paid his costs, except for payroll. Under his last contract, which was imposed on respondent and not reduced to writing, he received a flat $3,000 per month. U.S. Collections then paid the collectors through respondent’s account.

There were no client files in the traditional sense, with all materials relating to the debtors stored on computers owned by Collect America. For example, in the Violet Pfaff Matter, her “file” in the computer was owned by Collect America. This electronic file was respondent’s firm’s file to the extent that he was representing Collect America and was the attorney collecting debt from Violet Pfaff. Respondent had limited access to the file, and this access ceased when he terminated his relationship with Collect America.

Collectors reported to Jim Wooley and Craig Howard, who were partners/owners of the U.S. Collections franchise. Craig Howard’s salary was paid by U.S. Collections through respondent’s payroll account.

Respondent did not have the authority to hire and fire collectors without first going through a supervisor employed directly by U.S. Collections. As a result of these disciplinary complaints, respondent attempted to fire a collector, Joyl LaRoy, for violating the Fair Debt Collections Act,3 but was [502]*502told by U.S. Collections that he could not. Respondent represented that he had fired the collector, Billy Melton, for similar conduct, but there was no written document in Melton’s personnel file reflecting that he had been fired or discharged.

The collectors, LaRoy and Melton, committed misconduct when contacting debtors. The following matters are based on that conduct.

Izóla Wilson Matter

During a telephone call Wilson received from Melton on June 28, 1999, Melton engaged in the following: (1) offered legal advice; (2) threatened criminal prosecution;4 (3) referred to the creditor as “my client;” (4) gave a legal opinion that jurisdiction was vested in Richland County; (5) used abusive language by describing Wilson’s situation as the same as if she used a gun and robbed the creditor and “ripped them off;” and (6) referred to Wilson’s owing of an unpaid debt as equivalent to welfare.

Violet C. Pfaff Matter

Pfaff, a Michigan resident, was told by one of respondent’s employees that, “We don’t deal with lawyers or law firms. Tell your lawyer that!” During two separate telephone calls, Pfaff was called a “bloodsucker,” a “liar,” a “swindler,” and a “leech.”

[503]*503 Greg Leaf Matter

Respondent, in January 1999, mailed a letter to llene Chase, a New Mexico attorney, regarding an attempt to collect a debt on behalf of Wells Fargo in the amount of $5,471.98. The letter was sent to Chase’s business address. Thereafter, Chase and/or her husband, Greg Leaf, received a number of telephone calls from respondent’s employee. During these conversations, the employee was belligerent, profane, and accused Leaf of making promises to pay and not keeping those promises.

Telephone calls ceased after Leaf wrote a letter to respondent requesting the telephone contact cease pursuant to the Federal Consumer Protection Act.

Peggie Kay Ungerer Matter

Ungerer, a Pennsylvania resident, received telephone calls from Melton regarding the collection of a debt. Calls were made to her employer’s office twice on July 14, 1999, once on July 15, twice on July 16, twice on July 22, twice on July 23, twice on July 29, twice on July 30, and once on November 18. Calls were also made to her home on July 24 and July 31. During an August 4th telephone call, Melton referred to Ungerer as a “liar.” When she returned a call to respondent’s firm she spoke with Melton, who again called her “a liar” and hung up on her.

During the July 14th call, Melton threatened criminal prosecution and offered a legal opinion that Ungerer’s wages would be garnished, without determining whether garnishment was lawful under Pennsylvania or South Carolina law. During this conversation, Melton also used profane language and called Ungerer back five minutes later.

During a July 16th call, an employee of respondent called Ungerer at her employment and her employer directed him not to call the office again. Respondent’s employee began cursing at Ungerer’s employer.

Ungerer was also called at home on July 14th. In this call, respondent’s employee called her while she was still asleep and directed the person answering the phone to “wake her ... up and put her on the phone.” (Expletive deleted).

[504]*504 Shirley Benson Matter

Benson, a Texas resident, received a telephone call from one of respondent’s employees regarding the collection of a debt. This employee screamed and yelled at Benson, used profanity, called her “very low names,” and referred to her as a “worthless deadbeat.” Four days later, the employee called Benson at her office while she was on another line. Benson’s employer answered the phone and asked respondent’s employee if he would like to leave a message. The employee yelled at Benson’s employer not to hang up on him. When she did, the employee called back immediately and asked to speak to the manager.

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Related

In Re Strickland
580 S.E.2d 126 (Supreme Court of South Carolina, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
560 S.E.2d 406, 348 S.C. 499, 2002 S.C. LEXIS 29, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-zenner-sc-2002.