CL&P Blog

Debtor's Prison in Indiana

Apparently in the southern counties of Indiana, judges are not in sympathy with our state constitution's ban on imprisonment for debt, which dates back to 1851.  Judgment debtors whose sole income is exempt Social Security, and whose assets fall below the state property exemptions, are summoned to court on show cause orders, and threatened with contempt if they refuse to make payment arrangements.  The Indiana Court of Appeals recently reversed one trial court's judgment ordering an indigent debtor to pay $25 monthly on an ordinary contract debt, or face prison.  HT to student Laura Harris who researched this practice while working at Indiana Legal Services.  Below the break I have reproduced the exchange between the trial judge and the consumer.

NY Attorney General Cuomo Sues to Vacate 100,000 Debt Collection Judgments

The AG claims that the defendants were never served, and so defaulted, whereupon money was seized from bank accounts and wages garnished.  The Times report is here.  The complaint lists  35 lawyers and law firms as defendants. The amount collected is said to exceed $500 million.

AOL Posts "Debt Collection Horror Stories"

AOL has posted a collection of what they call "Debt Collection Horror Stories" which they describe as true stories involving AOL users.  (Hat tip: Arlene Levitin). 

Does Federal Law Bar Collecting Debts From the Dead?

by Jeff Sovern

Last week, on March 3, the Times ran a front page article, You’re Dead? That Won’t Stop the Debt Collector, about collecting debts from the families of the deceased.  Here's a particularly memorable quote:

“In times of illness and death, the hierarchy of debts is adjusted,” said Michael Ginsberg of Kaulkin Ginsberg, a consulting company to the debt collection industry. “We do our best to make sure our doctor is paid, because we might need him again. And we want the dead to rest easy, knowing their obligations are taken care of.”

Parts of the story are quite poignant.  For example:

The people on the other end of the line often have no legal obligation to assume the debt of a spouse, sibling or parent. But they take responsibility for it anyway.

“I am out of work now, to be honest with you, and money is very tight for us,” one man declared on a recent phone call after he was apprised of his late mother-in-law’s $280 credit card bill. He promised to pay $15 a month.

* * *

But sentiment also plays a large role, the agencies say. Some relatives are loyal to the credit card or bank in question. Some feel a strong sense of morality, that all debts should be paid. Most of all, people feel they are honoring the wishes of their loved ones.

But what do the recipients of these calls understand about their legal obligations?  Another quote:

Scott Weltman of Weltman, Weinberg & Reis, a Cleveland law firm that performs deceased collections, says that if family members ask, “we definitely tell them” they have no legal obligation to pay. “But is it disclosed upfront — ‘Mr. Smith, you definitely don’t owe the money’? It’s not that blunt.”

Sarah Waldeck of the Concurring Opinions blog commented that in fact it should be that blunt.  She's right.  But even thought the Fair Debt Collection Practices Act does not explicitly require such a disclosure, there's a pretty good argument the absence of such a disclosure violates the FDCPA.  Section 807 of the FDCPA prohibits "false, deceptive, or misleading representations in connection with the collection of any debt."  That includes the false representation of "the character . . . or legal status of any debt."  When a debt collector calls you up to ask for payment of your deceased relative's debt, isn't there an implied representation that you owe the debt?  The standard for deception under the FDCPA in many circuits is the "least sophisticated consumer" standard.  Wouldn't such a call deceive the least sophisticated consumer into thinking that he owes the debt, unless the caller says to the contrary?

And that's not the only problem under the FDCPA.  Section 808 bars debt collectors from using "unfair or unconscionable means . . . ."  I'd love to hear someone explain why taking advantage of grieving families in such circumstances is not unfair or unconscionable when no one has told them they don't have to pay.  Especially if the debt collector starts explaining how paying the debt would help the deceased rest easy.

The consumers have still another argument, though it's a bit strange.  Section 805(b) of the FDCPA bars collectors from communicating "in connection with the collection of any debt, with any person other than the consumer  . . . "  Well, the consumer's dead, so maybe the collector ought to be able to communicate with his family--except that that's not what the statute says.  Section 803(3) defines "consumer" as "any natural person obligated or allegedly obligated to pay any debt."  But the people receiving the calls apparently are not obligated to pay the debts; that's what the article's about.  Maybe you could argue that the point of this provision is to prevent debtors from embarrassment, and someone who's dead is beyond that, but I don't find that persuasive; certainly people have an interest in how they will be perceived after their death.  Maybe a better argument is that the family lacks standing to assert this claim (though the debtor's estate should be able to), but it certainly raises an interesting puzzle.  Anyway, I wonder if we're going to see some law suits arising out of this practice. 

ADDENDUM: As a commenter pointed out, section 805(d) has a special definition for "consumer" which may include some of those who have heard from the debt collectors, and to that extent would save debt collectors from violating section 805.

Making Money on Bounced Checks

CNN is reporting here on a program under which county prosecutors turn over bounced check matters to American Corrective Counseling Services (ACCS), which then requires the consumers who wrote the checks to pay to attend ACCS classes.  The articles describes how a bad $14 check ultimately cost a consumer $285, including the $160 class fee.  My co-blogger Deepak Gupta is quoted in the story, and Public Citizen has filed cases charging that the practice violates the Fair Debt Collection Practices Act.  (Hat tip to Kristie Kline).

Update: ProPublica, which co-produced the CNN story, has a more detailed report on their website.  The Consumerist discusses the story here.

FTC Releases Annual Consumer Complaint Tally, Debt-Collection Reports

by Deepak Gupta

The Federal Trade Commission today released its annual tally of consumer complaints. For the ninth year in a row, identity theft was the number one consumer complaint category. Of 1,223,370 complaints received in 2008, 313,982, or 26 percent, were related to identity theft. The next-largest category, clocking in at 9% of all complaints, was debt collection. The FTC receives more complaints about the debt-collection industry than any other industry. You can view a summary of the results here, and a detailed report on the data, including geographical statistics, here.

The FTC also released two important reports on debt collection practices--a report on a workshop held last year to mark the 30th anniversary of the Fair Debt Collection Practices Act and the Commission's annual report to Congress on enforcement under the Act.  The workshop report, titled Collecting Consumer Debts: The Challenges of Change, makes several specific recommendations for amendments to the FDCPA and raises questions about abusive collection litigation practices and the use of mandatory binding arbitration.

• Give FTC Rulemaking Authority: The report recommends that Congress give the Commission authority to issue rules under the FDCPA.
• Increase Statutory Damages: The report states that private actions, not FTC actions, were intended by Congress to be the primary means of promoting industry compliance with the FDCPA, and notes that the amount of statutory damages (up to $1,000) that consumers can obtain in lawsuits under the FDCPA has not changed since 1977. To increase deterrence, the report recommends increasing the damage amounts to reflect inflation since then, and, in the future, to increase them periodically.
• Information Flow:  Require that collectors have better information, making it more likely that their efforts will be for the right amount and be directed to the right consumer.

• Validation Notices & Reasonable Investigations: Require that collectors provide consumers with better information explaining their rights under the FDCPA, including (1) that the “validation notices” that collectors are required to send to consumers also disclose the name of the original creditor; break down the debt by principal, total interest, and total fees; and inform consumers of certain rights they already have under the FDCPA and (2) that collectors conduct “reasonable” investigations responsive to the specific dispute the consumer raised.

• Adjustments for New Technology: Modernize the law to reflect changes in technology, including prohibiting collectors from contacting consumers via their mobile phones, including by text messaging, without prior express consent; and requiring collectors who use new payment technologies to obtain express verifiable authorization from consumers before accessing their accounts.

Debt-Collection Litigation and Arbitration Practices: The report recognizes that "certain debt collection litigation and arbitration practices appear to raise substantial consumer protection issues."  Among other things, the report cites Public Citizen's report, The Arbitration Trap, on the use of arbitration as a debt-collection mechanism. The report makes no definitive recommendations on arbitration and litigation, but instead announces that the FTC will convene regional roundtables this year with state court judges and officials, debt collectors, collection attorneys, consumer advocates, arbitration firms, and other interested stakeholders to learn more and develop possible solutions.

Times Piece by Debt Collector and Reports on Other Consumer Issues

Today's Times has a piece written by a debt collector about how he helps people, In Tough Times, A Debt Collector Sees the Pain.  An excerpt:

When someone calls back and thanks you for suggesting they get the debt resolved with me before it appears on a credit report, I think, “Wow, I did do good for someone.” It’s a great feeling to help someone out of a dire situation. I’ve helped young people just out of school and took time out to explain how bad credit could hurt them in the long run. They call back and say: “Thanks for the advice. You’ve saved me years of heartache.”

I wonder if the Times will print any letters from those who have different feelings about debt collectors (maybe readers of the Blog?).  The article was in the business section, so letters should be emailed to sunbiz@nytimes.com. 

Another article in the Business section, Phones as Credit Card? Americans Must Wait, describes how we may someday use cell phones as payment instruments, something that has been occurring in Japan for years.  Does that mean that cell phone contracts will someday include TILA disclosures? And from the Real Estate section, Safeguarding Against Loan Discrimination, about settlements reached by the New York State Attorney General's Office with two mortgage brokers accused of charging minority borrowers higher fees than white borrowers, and how borrowers can protect themselves. 

Wednesday's paper brought distressing news: Big Breach in Card Data Raises Risk for Millions.  Here's the first paragraph:

Heartland Payment Systems, a major payment processing company, disclosed a data breach on Monday that potentially exposed tens of millions of credit and debit cardholders to the risk of fraud in what could quickly become one of the country’s biggest data compromises.

At the risk of trampling on Alan White's territory, here's an article from back on December 21 that I never got around to posting, Bob Tedeschi's Mortgages column titled Revising Loan Modifications.  Some excerpts:

“The average loan servicer wants to reach a resolution about a loan modification with a single letter or a phone call,” said Steven Horne, the president of Wingspan Portfolio Advisors, which helps clients renegotiate loan terms. But, he said, devising an effective long-term strategy to enable a borrower to avoid foreclosure might take several rounds of communication.

* * *

But Mr. Horne, a former executive at Fannie Mae, suggested that the new loans had not been structured to best meet borrowers’ financial circumstances, in large part because the loan servicers that collect mortgage payments cannot engage in a lengthy analysis of each borrower’s finances.

It is up to the borrowers, therefore, to be more proactive. Mr. Horne says they can increase the likelihood of securing the right loan if they push for more personal attention, and do a little homework about their own finances.

And from December 18, Yahoo Puts New Limits on Keeping User Data, about how Yahoo will keep some personally-identifiable data for only 90 days, less time than the other major search engines.

Pity the poor debt collector?

Consumers took on millions of dollars of credit card, medical, and other debt in the last five or six years, creating lots of work for debt collectors. But debt collectors say they are hurting along with everyone else in this recession, because fewer consumers are able to pay off those debts.

Apparently, more consumers are just "refusing" to pay their bills. Minneapolis debt collection lawyer William Hicks from Messerli & Kramer estimates a 25-40% drop in recoveries for some portfolios over the last sixteen months. According to University of St. Thomas professor David Vang, and finding out in the process that most debt collectors are really bluffing: "They really aren’t going to pursue their borrowers very hard."

Vang apparently does not consider harassment to be "very hard" pursuit by debt collectors. If debt collectors are recovering less, they seem to be trying harder than ever, if complaints to the Federal Trade Commission (PDF link) and the Better Business Bureau are any indication. Perhaps unsurprisingly, complaints about debt collectors are on the rise.

Collection revenues down; harassment up. Just a sign of the times.

Collectors hurt by recession as consumers walk away from unpaid bills | Finance & Commerce (via Caveat Emptor)

(photo: Wikimedia Commons)

Worst yet to come?

The New York Times published a gloomy anonymous email from a banker castigating his own industry yesterday.  The banker predicts further bank collapses as more credit card receivables go into default. The banker makes the point that credit card divisions in banks rely on stated income and assets in much the same way that the mortgage industry relied on "liar" loans and are continuing to aggressively market high cost debt to those that cannot repay it.

In general, my impression has been that credit card lenders have been more sophisticated in managing default risk because they lacked the cushion of collateral. Moreover, unlike mortgages, credit card portfolios were not so obviously exposed to an asset bubble.  Still, as the recession spreads and Congress continues to sharpen moral hazard with financial institution give-aways (irrespective past consumer abuse) one cant help but wonder.

Times Reports on Credit Card Suits, Modification of Mortgages, Evictions in Chicago and More

Yesterday's Times included "When Plastic Seduces, A Reckoning Awaits," about cases in the New York City Civil Court against consumers on credit cards.  An excerpt:

As the final stop on the subprime lending train, the Civil Court has become the 21st-century debtors’ court. Filings have nearly tripled since 2000. Of these, court officials project that about 350,000 this year will involve debt on credit cards. * * *

* * *

[The article then describes how Juan Vega, a security guard making $11 an hour, had obtained a credit card on which the lender claimed he owed $1,400.]

“They gave me a $500 spending limit,” he said. “So it was less than that. The rest to get it to $1,400 was interest, fees.”

The negotiations had been two sentences long.

“The lawyer said, ‘We can finish this for $900,’ and I said, ‘O.K.,’ ” Mr. Vega said. * * *

The lawyers for the banks had virtually no documents on the cases, just printouts with names, account numbers and the amount that was supposedly owed. When it was Miranda Gee’s turn, she produced papers showing that she held a different account with Capital One than the one listed on the printout, which claimed that she owed about $1,000.

“They brought me here, but it wasn’t my account at all,” Ms. Gee, 43, said. “They put a hold on my bank accounts with Chase for twice the amount they claimed.”

The judge agreed to sign an order unfreezing her savings with Chase while Capital One investigated to make sure it had the right account. Since Mr. Funk, the bank’s lawyer, had no paperwork, he asked Ms. Gee if he could copy her file. She said yes.

Reports like these in which it appears that creditors are obtaining judgments without being able to prove that the money is indeed owed make me wonder how many of these claims, many of which sound like they end up in default judgments, are in fact owed, or if the consumer did indeed take on the debt, whether the claimed amount is inflated. 

Friday's Times brought an op-ed piece by Harvard Law Student Eric S. Nguyen, titled "Fight for the Family Home."  Nguyen argues that Congress should modify bankruptcy laws to permit modification of terms in mortgages on primary residences.  A pretty persuasive excerpt:

Consider two different couples facing foreclosure. The first rents a penthouse apartment to live in and then takes out a loan to purchase a house to rent out as an investment property. After racking up a mountain of credit card charges, the couple files for bankruptcy.

The second couple has two young children and buys a home to live in. When illness keeps the mother from working for six months, the family falls behind on bills and files for bankruptcy. Which family should have a chance to keep its home?

If you said the family with children living in their own home, you might be surprised to learn that Congress disagrees. * * *

On Thursday, the Times published "Sheriff in Chicago Ends Evictions in Foreclosures."  The article explains:

Sheriff Dart said he took the measure because an increasing number of the residents being evicted were renters who might have been dutifully paying their rent, and might have had no knowledge that the owner was behind on the mortgage.

On Wednesday, the coverage shifted to online selling in Europe with "Europe Prepares Consumer Rights Plan."  The new proposal would provide for a 14-day cooling off period, among other changes.  I don't know about European sales laws, but that would be an extraordinary length of time for a cooling off period in this country.