FH Cann & Associates, Inc. et al. v. Moorman (D. Mass. 20-cv-11251).

  • July 2, 2020

When debt collection agency FH Cann sought to collect Troy Moorman’s past due student loan debt on behalf of the U.S. Department of Education, Moorman responded – in Judge Woodlock’s terms, “with a farfetched, distracting, and unsustainable theory of intellectual property violation” – by asserting that Cann was violating Moorman’s copyright in his name and asserting a $500,000 lien on Cann’s assets and the property of its officers and shareholders.  Moorman sent Cann an “Affidavit of Truth” that asserted copyright and trademark protection in his name and purported to create a security interest in Cann’s assets.  The affidavit, which referred to Cann as “SHITFORBRAINSATTORNEYCOLLECTIONAGENCY” (which, while perhaps funny in a very juvenile way, is advised against in legal briefing) and contained a forged signature.  Moorman then used this affidavit as the basis for a UCC-1 financing statement that he filed with Massachusetts.

 Cann filed a declaratory judgment action seeking to have these liens removed or declared invalid, the copyright and trademark assertions deemed improper, and seeking punitive damages. 

Moorman, representing himself, filed a motion to dismiss, while Cann filed a motion for a permanent injunction to preclude Moorman from claiming copyright or trademark protection in his name and from filing any further documents pertaining to Cann and dissolution of the lien.  Moorman filed an opposition to the injunction motion that he did not sign.

Judge Woodlock denied Moorman’s motion to dismiss, determining that his claims were “utterly without merit.”  He noted that Moorman’s motion simply stated the legal standard governing motions to dismiss, with no further argument or development of his positions.  He denied Cann’s motion to strike Moorman’s opposition to the injunction motion under Rule 11, noting that while the rule requires a filing to be signed, he retained discretion to consider the filing so that he could reach the merits of the motion.

Judge Woodlock struck an affidavit pursuant to 28 U.S.C. 1746(1) submitted by Moorman in which he asserted that the court lacked authority over him because he is not subject to the laws of this country.  He asserted that he is not “within” the United States and that he is a “private postmaster under the jurisdiction of the Universal Postal Union.  He says that “Troy D. Moorman” is not his real name, but instead is the “name of a municipal, legal-person created by the State of California” without his consent. Judge Woodlock deemed this affidavit insufficient to foreclose consideration of the pending motions and therefore struck it.

Judge Woodlock refused to strike a second affidavit of Moorman that repeated many of the allegations form the first affidavit, but that did address whether Cann has authority to collect his student loan debt.  The affidavit included some discussion of Moorman’s understanding of the U.C.C. and the formation of security agreements, which Judge Woodlock deemed worthy of consideration. 

Turning to the motion for a permanent injunction, Judge Woodlock noted the heightened standard for requiring a party to take an affirmative action (here, withdrawing the UCC filing).  Considering the factors used to determine whether an injunction should issue, Judge Woodlock found that Cann had easily demonstrated a likelihood of success – Moorman has no copyright in his name (that theory has already been rejected many times by U.S. courts under the grounds that names are facts that cannot be covered by copyright), and thus no plausible consideration to support the security agreement and the underlying UCC filing.  He noted the purported “self-executing” nature of the purported security agreement, which would also cast doubt on whether there was mutual assent and thus invalidate the agreement.

Judge Woodlock further found a likelihood of irreparable harm, in that the UCC-1 filing remaining on the public record could hurt Cann’s credit and goodwill with its bank.  The balance of harms weighed heavily in Cann’s favor, as Moorman would suffer no legal harm as he was never entitled to copyright in his name to begin with.  Finally the public interest favored Cann, as the filing of baseless liens and financing statements goes against the public good.  Accordingly, Judge Woodlock granted Cann’s motion for an injunction.

Judge Woodlock went a step further, and issued an order that Moorman show cause by June 9th a final judgment should not be entered declaring that he has no copyright or trademark rights in his name, the purported security agreement is void, and the lien and UCC statement are void.

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