Fink v. Shemtov
148 Cal. Rptr. 3d 570
Cal. Ct. App.2012Background
- Fink, acting in pro se, sued S&E Stone, Inc. and others as assignee of Stone Center's claims after Stone Center allegedly sold its claims to Fink.
- Two documents—an Assignment Contract (Feb 16, 2007) and an Acknowledgment of Assignment (Feb 23, 2007)—purportedly transferred Stone Center's rights to Fink in exchange for $5,000 and 50% of any recovery.
- Lan testified the assignment was complete and absolute; Fink paid most of the $5,000 and agreed to prosecute and collect on the claims in his own name.
- The trial court initially found the assignment potentially valid but later ruled that the arrangement could constitute unauthorized practice of law and void the assignment.
- The proposed statement of decision concluded Fink’s representation exceeded the permissible scope in collection actions, alleging unauthorized practice of law.
- On appeal, the court reversed the judgment as to S&E, holding the assignment vested legal title in Fink and did not create an attorney-client relationship; the remaining defendants’ judgment was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the assignment was a complete transfer of title | Fink argues the assignment was absolute and valid. | Trial court found it to be a joint venture or invalid. | Assignment vested legal title in Fink. |
| Whether the arrangement violated unauthorized practice of law under 6125 | No attorney-client arrangement; Fink acted as debt collector. | The joint venture and self-prosecution amounted to unauthorized practice. | Insufficient evidence that it violated 6125; no attorney-client relation found. |
| Whether Fink had standing to prosecute the action | Assignment gave Fink standing to sue in his own name. | Standing depended on a valid assignment; trial court probed the validity. | Fink had standing due to the absolute assignment. |
| Whether the trial court’s ruling should be sustained given the assignment issues | Court should uphold the assignment and proceed on the merits. | Court could void the assignment as improper. | Judgment reversed as to S&E; remand for handling remaining issues consistent with the assignment finding. |
Key Cases Cited
- National R. Co. v. Metropolitan Tr. Co., 17 Cal.2d 827 (Cal. 1941) (assignment vests legal title in assignee for collection)
- Macri v. Carson Tahoe Hospital, Inc., 247 Cal.App.2d 63 (Cal. App. 2d Dist. 1966) (no attorney-client relationship arises from naked assignment for collection)
- Cohn v. Thompson, 128 Cal.App. Supp. 783 (Cal. App. 1st Dist. 1932) (assignee controls action; no obligation to provide legal services to assignor)
- Le Doux v. Credit Research Corp., 52 Cal.App.3d 451 (Cal. App. 4th Dist. 1975) (collection-agency context; critique of unauthorized practice implications)
- Birbrower, Montalbano, Condon & Frank v. Superior Court, 17 Cal.4th 119 (Cal. 1998) (definition and scope of practice of law; unauthorized practice)
- California Ins. Guarantee Assn. v. Workers’ Comp. Appeals Bd., 203 Cal.App.4th 1328 (Cal. App. 4th Dist. 2012) (assignment of a thing in action; ownership and transfer rights)