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Stop or My Debt Collector Will Shoot!

posted by Bob Lawless

From the Oak Forest (IL) Star--The village of Midlothian, Illinois apparently has a full-service police department. If you're a local merchant, the chief of police thinks it's OK if the police help you collect your bills.

The story begins like many we hear in our academic research of talking to people with financial problems. Angela Procter ran up a $460 bill to a brake-and-muffler shop. She made a partial payment of $200, and the shop released her van to her. A later $150 payment brought the balance down to $108. Procter was not working because of a broken ankle, was pregnant with a child on the way, and had just been evicted from her apartment. Her fiancé was a construction worker and unable to find work during the winter months. As Procter was quoted, she appreciated the forbearance of the muffler shop, but she had to prioritize putting food on the table and a roof over the head of her child. Like many people to whom we talk, Procter was attempting to deal with her debt to the muffler shop, paying what she could. What did she get as a reward?

Procter next received a telephone call from a lieutenant with the Midlothian Police Department who informed her that failure to pay the bill could result in her arrest. Scared, Procter paid the balance she owed the muffler shop. Not only does the Midlothian Police Department not deny any of this happened, but the chief of police, Vincent Schavone, defended his lieutenant's actions. Schavone said his department was "known to call people on behalf of businesses in the village to see if they could be convinced to make payments." Wow.

Schavone denies Procter's version of the story contends there are other facts to put the story in context but refuses to give an alternative account because "he has been contacted by an attorney." Schavone better have a drastically different account because these actions are wildly inappropriate. Owing a debt is not a criminal act. Until he can offer a different account of this story, Schavone should try this as an appropriate response--"Gee, we goofed up. We were wrong, and we'll take steps to educate ourselves so it doesn't happen again." Instead, when challenged, the Midlothian Police Department's instinct was to stick to their guns. In addition to Schavone's comments, the police lieutenant involved in the case said that Procter could have been charged with theft of services. Wrong . . . unless it can be proven beyond a reasonable doubt that Procter did not intend to pay when she incurred the services, a highly unlikely scenario given her partial payments.

Because the Midlothian Police Department "has been known" to act on behalf of local merchants, has it become a debt collector under the U.S. Fair Debt Collection Practices Act? Doesn't it regularly collect debts due another? Can a police department be a "person" under the FDCPA? If so, doesn't it have obvious FDCPA liability for threatening actions it could not legally take? What about a lawsuit under 42 U.S.C. § 1983 for a violation of Procter's civil liberties or violation of a right guaranteed by a federal statute (i.e., the FDCPA) by a person acting under color of state law? I'm no lawyer, but . . . oh, wait, I am a lawyer, and those are the questions that immediately pop into my head. Surely there are answers, but I'll leave it to the comments for those who have done the research.

Kudos to an alert Credit Slips reader who brought this story to my attention. I'll leave that person anonymous as they e-mailed me privately. Even bigger kudos to Angela Procter for stepping forward with this story and standing up to these sorts of debt collection tactics. It really helps us understand the extent to which private debt collections are being turned into criminal matters.

Clarification (7/30): I had originally written that the police chief "denied" Procter's version of the story. Another reader pointed out that was inconsistent with the previous paragraph. All I know is what is in the newspaper story, which is not entirely clear on the police department's version of the facts. I have edited my post to indicate what the newspaper story appears to mean--that the police department contends there are other facts that give Procter's story a different context.

Comments

I had a situation in which police officers accompanied a private person who had sold a car to someone on a payment plan. Although the buyers made all payments, the sellers needed a car for a daughter and decided to lie to the police about defaulted payments. The police went to a private school to repossess the car from the buyers' child who drove the car to school. Despite the officers being told, over the phone, by the buyers that all payments had been made, the police demanded the keys and gave them to the seller.

The suit against the police department was (wrongfully) dismissed on immunity grounds. The claim against the seller went to trial and the facts set forth above were established. Although the buyers received a judgment in their favor against the sellers, it was the actions of the police that were the most disturbing.

You ask whether the police department can be a "debt collector" under the FDCPA. Unfortunately, the FDCPA exempts "any officer or employee of . . . any State [including any political subdivision of the State] to the extent that collecting or attempting to collect any debt is in the performance of their official duties." Collecting debt, of course, *shouldn't* be part of the "official duties" of the police, but it seeems that this police department has deemed that it is.

As for whether there are viable constitutional claims, this case seems analogous to litigation against so-called "check diversion" companies--collection agencies that enter into contracts with local prosecutors to collect bad check debt using threats of criminal prosecution. I'm in the midst of litigation against such companies and have developed some due process theories that might be applicable in a case like this. Those who are interested can read some of our briefs at the following link:

http://www.citizen.org/litigation/consumer/
(scroll down to the section on check diversion programs).

Deepak, thanks for the clarification on the FDCPA. It seems to me that the individual police officers could claim have strong defenses that they are not debt collectors, but what about the police department or the municipality. Can they just deem that debt collection is part of their "official duties" and thereby escape FDCPA liability? Sure, the subordinate officers were following directives of their superiors, but it seems to me one might argue that the FDCPA does not allow local muncipalities to deem themselves beyond its auspices.

I am Angela Procter's biological mother. She was the lady from Blue Island that was called by Midlothian police last year about a bill that was owed.
I wish that the media had looked a little further into that case. You see, Angela became "fair game" to them as soon as she became 18 years old. This story was a lot deeper than it appeared. There have been law enforcement officers harrassing our whole family for years. I was so offended when the anchorwoman from FOX 32 news made the comment that went something like this:
"Well, I guess that got her to pay the bill." I wonder if she would have said this if she had known that the officer that called her was using decoys for me and Angela for years in an attempt to basically destroy our lives.(I have reason to believe they are doing that to my sons now also) The anchor did not know that Harold Kaufman had been assisting Caryn Ray (whose mother works for the Cook County Sheriff's Department)and someone named Anna Macdonald to be decoys and/or intentionally provide false information for the mere pleasure of it.
My first husband, William Joseph Procter died in 1985.My second husband, Robert K. Lentz, whom I divorced in 1994, grew up with Caryn (Benoit) Ray, is friends of friends of Kaufmans and I do not know how he knows Anna Macdonald but they have tried to destroy us financially for years. There was some insurance money and they wanted to "get every penny" when Angela turned 18.
The anchor didn't know that Robert Lentz almost killed Angela by kicking her in the stomach when she was thirteen years old amongst other things. These cops did not want this to be known so for years they have been using decoys to intercept lawyers and any other thing they could steal from us.
They failed to mention that Janice Benoit, (Caryn's mother) worked for the department with county that oversees evictions and that Benoit bragged about knowing the meanest lawyers that would push it through as fast as they could. She has been trying to put me and my other two kids "on the street" for years. Unfortunately she always has a little scheme to make it appear that she and her friends are "helping".
The worst part of the whole situation is that they knew what a hard time she was having financially and that they had done everything in their power to make sure I didn't have any money for her to borrow either. That is still not the worst part. My mother Judy Houston of Whiting, Indiana has suffered colon cancer, scar tissue removal surgery for that, knee surgery, breast cancer all within the last 7 years. Last year when this was going on my mother had a kidney removed because of cancer. Cops knew this, they wanted to see my daughter suffer because of the situation they forced us both into and my mom wouldn't be able to assist her either. It is just mean what they are doing. They were trying to stop my kids from being able to press any further charges against my ex-husband and even had someone claim to be Angela and falsely accuse me when stupid me provided them with real proof of my first husband's death.But hey, they're law enforcement, they are above the law.

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