144 posts categorized "Debt Collection"

Good News About Credit Card Debt Sales

posted by Nathalie Martin

American Banker reporters Maria Aspan and Jeff Horwitz have been sharing cutting edge news about the debt collection and debt buyer world for some time. The news they share this week is good news indeed. They report that JPMorgan Chase is pulling back even more in its credit card collections-related activities, by stopping most bad loan sales to outside debt buyers. Chase had been receiving criticism for the way in which it pursued defaulting customers, which included many procedural shortcuts, mass robo-signing, and so on. As a result, Chase stopped suing its own customers and began selling off even recent bad debts to third parties. Now, just in time to avert new OCC suggested best practices for selling bad debts, Chase says it will no longer sell the bad debt either.  This leaves me scratching my head over here. Exactly what will happen to the bad debts now? 

Continue reading "Good News About Credit Card Debt Sales " »

Foreclosing On The Life Story In Your Head

posted by Melissa Jacoby

BrainsIn the fictional worlds of Charles Yu, George Saunders, or Etgar Keret, a person's accumulated life stories and thoughts when she files for bankruptcy might be withdrawn, like blood, then filtered for marketability. In such a world, a debtor might be required to spin her tale for the sole benefit of creditors, or forever silenced. Planning to give a five-minute anecdote about your childhood at The Moth? Don't even think about it.

Casey Anthony's bankruptcy was filed in January 2013 as a no-asset Chapter 7, with nearly  $800,000 in debt - not counting scores of claims with amounts identified as "unknown." Ms. Anthony's income and expense schedules list, literally and rather remarkably, zeroes all the way down. At the 341 meeting of creditors in March, Ms. Anthony asserted that friends and strangers take care of her needs. Presumably, this arrangement is not sustainable. Will she seek to support herself in the future by talking about her past? 

The bankruptcy trustee wants to auction off something that probably has never been expressly sold in a bankruptcy case (it certainly wasn't listed as an asset in the schedules): exclusive rights in perpetuity to the commercialization of Ms. Anthony's life story, including "her version of the facts, her thoughts and impressions of whatever nature, in so far as these pertain to her childhood, the disappearance and death of her daughter . . . her subsequent arrest . . . and withdrawal from society. . . ." (see the lengthy paragraph 3 in here). How much debt would be satisfied by such a sale? 

Continue reading "Foreclosing On The Life Story In Your Head" »

Direct Deposit and Social Security: Not so Nice for Those who Owe: Part II

posted by Nathalie Martin

So just a bit more information on garnishing social security and other public benefits.   Basically 42 U.S.C. § 407(a) has always precluded creditors (other than the IRS for taxes or those holding child support claims) from garnishing social security benefits (SSA) or other public benefits. As I found out when my cousin got into trouble with a credit card company, however, the banks were under no obligation to determine if the funds in a bank account that contained funds from more than one source were non-garnishable (forgive me for making up words). NCLC’s Margot Saunders and others spearheaded the implementation of 31 C.F.R. 212.6, which provides in part:

Continue reading "Direct Deposit and Social Security: Not so Nice for Those who Owe: Part II" »

Direct Deposit and Social Security: Not so Nice for Those who Owe

posted by Nathalie Martin

Jonathan Ginsberg posted an interesting article on the National Association of Chapter 13 trustees web site this weekend, that will be relevant to many of our readers as well. Social security is now requiring all beneficiaries to set up direct deposit, which means the resulted funds could become available to executing creditors if there are any funds from any other source in the account as well. You might recall my blog about this some time back, which contains cites to some of the relevant law.

As my previous blog explains, Federal law provides that Social Security payments are exempt from garnishment from civil creditors. If, for example, a credit card lender sues you and obtains a judgment, that creditor cannot ask Social Security to withhold funds from your government check. While these protections do not apply with equal force to the IRS collecting a tax debt or a creditor collecting child support, all other creditors are not to touch social security funds under any circumstances.

Continue reading "Direct Deposit and Social Security: Not so Nice for Those who Owe" »

Sixth Circuit Throws Out Debt-Buyer Settlement

posted by Nathalie Martin
The National Consumer Law Center’s e-blast this morning contained some very good news for consumers.  The 6th Circuit has just thrown out a nationwide settlement involving Midland, a robo-signing debt buyer, and over a million consumers.  This will allow other class and individual actions to proceed against Midland. The suit was thrown out for faulty notice to class members, who were not told in the settlement notice that they’d lose their individual fraud claims against Midland.  You may have heard about this case before, as it is the one in which an Ohio District Court held that “robo-signing” affidavits in debt-collection actions violate the FDCPA because the allegation of personal knowledge is false and misleading.  Midland employees had beensigning between 200 and 400 computer-generated affidavits per day for use in debt collection actions, without personal knowledge of the accounts. The unwound settlement would have paid consumers about $17 each.

Two very Important FTC Studies, One on Credit Reports and One on Debt Buyers

posted by Nathalie Martin

A recent FTC study of errors in credit reports is getting a lot of press. According to the most recent in a number of studies of the accuracy of credit reports, about 5% of U.S. consumers have an error on their credit report that is serious enough to increase their cost of credit. Although the credit industry is arguing that this is a small percentage (and I agree that this is a lot smaller than I expected), the head of the FTC does not consider it small. "These are eye-opening numbers for American consumers," said Howard Shelanski, director of the FTC's Bureau of Economics. "The results of this first-of-its-kind study make it clear that consumers should check their credit reports regularly. If they don't, they are potentially putting their pocketbooks at risk." The industry quickly noted that the errors in the other 95% do not affect people’s credit.

Continue reading "Two very Important FTC Studies, One on Credit Reports and One on Debt Buyers" »

An Empirical Overview of Modern Sovereign Debt Litigation

posted by Mark Weidemaier

In December, I attended a terrific conference examining historical parallels to the European debt crisis. I was there to talk about the early-20th century antecedents of modern collective action clauses, the magic contractual potion - or is it snake oil? - that will banish holdout litigants from the kingdom forever more. There were some really great papers, including this one (Sovereign Defaults in Court: The Rise of Creditor Litigation 1976-2010, by Julian Schumacher, Christoph Trebesch, and Henrik Enderlein), which may interest many Credit Slips readers.

One of my interests involves how changes in sovereign immunity law influence bond contracts, and I have written about that relationship here. Schumacher et al. address a related but quite distinct subject: the determinants of sovereign debt litigation. Why are some restructurings followed by a flood of lawsuits when others produce few or none? Are poorer countries more likely to be targeted? Does the size of the haircut matter? They have assembled a comprehensive dataset, which includes essentially all lawsuits filed in London and New York since the advent of the modern era of sovereign immunity (which they date to the 1976 enactment of the Foreign Sovereign Immunities Act in the US). My synopsis of their findings after the jump.

Continue reading "An Empirical Overview of Modern Sovereign Debt Litigation" »

Putting the E(lliot) in Sovereign Debt Enforcement...

posted by Mark Weidemaier

Until a month or so ago, you could have asked almost any economist or political scientist whether sovereign borrowers worry about legal enforcement, and, by way of answer, you would gotten a technical version of "Huh?" Academics disagree about why sovereigns repay loans, but almost no one thinks they do so to avoid being sued. So although bond investors are technically entitled to sue sovereign borrowers, there is no evidence that these formal legal entitlements actually impact the likelihood of repayment. That's why NML v. Argentina has captured so much attention. Hedge funds like Elliott Associates (and NML Capital, a related fund) are finally at the cusp of creating potent remedies for jilted bond investors.

If this effort succeeds, it will mark a revolution in the sovereign debt markets, one that will give sovereign borrowers reason to fear legal enforcement. And at first glance, one would think investors would welcome such a development. In a private loan, lenders typically want strong legal enforcement rights - the better to ensure they get their money back. Surprisingly, however, this hasn't always been true in the sovereign debt context. In this recent paper, I track how sovereign bonds evolved in response to the momentous changes in the US law of sovereign immunity that happened in the 20th century. Between 1952 and 1976, foreign sovereigns gradually became subject to the jurisdiction of US courts and eventually to coercive methods of judgment enforcement (i.e., asset seizure). Investors had these rights, however, only if the bond contract granted them, and almost no bond contract did. To the contrary, throughout most of the 1970s and 1980s, bonds issued under New York law provided only symbolic enforcement rights - basically, allowing investors to sue the borrower but not to enforce the judgment. What's more, investors didn't seem to be willing to pay more for the new enforcement rights they did receive. Basically, a major doctrinal revolution occurred, but investors didn't seem to notice.

As for NML v. Argentina - well, investors seem to have noticed. Later this week, I'm heading to a conference in Geneva, where a group of lawyers, economists, and political scientists will talk about past debt crises and the lessons they offer for the present one. I expect that NML v. Argentina will capture a fair amount of academic interest. After many years of discounting the relevance of legal enforcement, academics may have to start taking it seriously too.

Debt Collection Goes Hollywood with Brad Pitt as Director

posted by Nathalie Martin

At long last, debt collection goes Hollywood! Brad Pitt's productio company Plan B and HBO are developing what looks like a new TV series called "Paper," a drama inspired by Jake Halpern's essay "Pay Up" featured in the New Yorker. "Paper" features a gangster trying to clean up his life and support his children as a single parent through a professional debt collector’s job. He finds, however, that life in the debt collection business can be just as lethal as the biz he's struggling to leave behind. I am excited for the TV series, which I picture to be a bit like  a combination of Breaking Bad and the Wire, without the drugs or the frontier or backwater towns. 

In Pay Up, the dad involved collected on aging payday loans, the kind of debt almost no one pays on. The project is classified as “in development,” with no production schedule set. Currently, there are at least two producers and one writer attached, so we should see this series or at least ads for it in about a year.

You've sunk my battleship! And seized my carrier...

posted by Mark Weidemaier

There is a widely-held view that sovereign bonds don't contain the optimal terms but are slow to incorporate better ones. Right or wrong, that view has prompted many government-sponsored initiatives to reform bond contracts, such as the current plan to mandate the use of standardized collective action clauses in all euro area government bonds. These reform initiatives often fail, and the view persists that sovereign bond contracts could use some improvement.

Why do I mention this? My last post discussed how the sovereign immunity waiver in its bonds got Argentina into trouble, allowing jilted bondholders to convince a court in Ghana to help them seize an Argentine navy ship. Perhaps this was consistent with what Argentina agreed to in the bond, but the country predictably objected when the seizure occurred. The ensuing diplomatic kerfuffle highlights why enforcing jurisdictions (like Ghana, in this case) might be better off forbidding their courts to help private creditors seize a foreign country's military assets.

Below the jump, you'll find two figures showing how sovereign bonds have addressed the subject of sovereign immunity over the past two decades. As you'll see, Argentina is no outlier; plenty of bonds include waivers that are just as broadly-written.

Continue reading "You've sunk my battleship! And seized my carrier..." »

"A rifle doesn't scare me. But we expected the Argentines to act professionally..."

posted by Mark Weidemaier

In my last post, I said that the US Court of Appeals for the Second Circuit had interpreted the pari passu clause in Argentina's bonds as a promise to forego a century's worth of restructuring practices. The district judge still needs to clarify the injunction enforcing that promise. While we wait for that very large shoe to drop, I want to talk about the other major enforcement ruckus involving Argentina and ... NML Capital. This one already has people reaching for their weapons.

The Libertad, an Argentine naval vessel, remains in port in Ghana after a court there ordered its seizure and potential sale to satisfy a judgment held by NML Capital. Military property is typically immune from this kind of thing, but the court held that Argentina had waived its immunity in the bond. The case is odd, for reasons I'll explain here. But this post also lays some groundwork for future posts, which will share some evidence about general market practices with respect to immunity waivers.

Continue reading ""A rifle doesn't scare me. But we expected the Argentines to act professionally..."" »


posted by Amy Schmitz
I have been working for a few years in developing and creating a consumer outreach website at MyConsumerTips.info.  The site is purely non-profit and has no sponsors or advertisers. It aims to simply provide consumers with “consumer tips” that change each day, independent summaries regarding debt-related and other consumer rights, quizzes and polls regarding such issues, and other consumer protection resources. It is user-friendly and interactive. This is part of my larger “Consumer Empowerment”service and experiential learning projects, and outreach endeavors.

Unfortunately, it is tough to gain traction for such non-profit sites without paying for promotions through Google or others. Also, there so many sites that purport to provide consumer resources that individuals suffer information overload and are not sure what to trust.

Hopefully, MyConsumerTips.info will deservedly gain trust, do some good and expand in ways that benefit consumers!  Check it out.

Learn How to Defeat Debt Collection cases Involving Junk-Debt-Buyers and Other Robo-Signers

posted by Nathalie Martin

Professor Peter Holland (U Maryland Law) has written a fantastic paper explaining in great detail how to defend against a debt-buyer-lawsuit, and possibly recover for Fair Debt Collection Practices Violations as well. Jessica Silver-Greenberg has followed on with an interesting New York Times article  in which one Brooklyn judge estimates that “roughly 90 percent of the credit card lawsuits are flawed and can’t prove the person owes the debt.”
Many of these suits are brought by companies who buy long lists of aged debt, some of which is time barred, some of which has been discharged in bankruptcy, and some of which already has been settled or collected upon. The buyers typically pay pennies on the dollar for lists of these debts, and have no receipts or proof that the debts are still due.  In fact they know little to nothing about the debt, which is typically sold as is with no representations that the debts are still due.

Continue reading "Learn How to Defeat Debt Collection cases Involving Junk-Debt-Buyers and Other Robo-Signers" »

A Question Answered

posted by Bob Lawless

Back in April, I posted about Minnesota Attorney General Lori Swanson investigating allegations that Accretive Health Care aggressively collected debts from hospital patients. These allegations included claims that Accreive was obtaining payments from people in emergency rooms and from their hospital bedsides. Yesterday, Accretive settled these claims, agreeing to pay $2.49 million and to withdraw from the state of Minnesota for a period of six years (although it can come back after two years with the attorney general's permission). New York Times coverage is here.

Over coffee this morning with a friend, I threw out the same question from my original post. How does an organization get itself to the place where it collectively comes to think such strong-arm collection tactics on hospital patients are a good idea, let alone morally defensible? A profile of Accretive's CEO, Mary Tolan, in Crain's Chicago Business contains this gem:

"My objective is just to be a happy, confident capitalist," says the devotee of Ayn Rand's and Milton Friedman's free-market gospel, which she applies with a combative, survival-of-the fittest management style.

At least I have my answer.

Continue reading "A Question Answered" »

When Serving Jail Time for Unpaid Debts Becomes a Debt Spiral

posted by Nathalie Martin

Tell me.  Are we allowed to do anything we like to those with the least power and money in our society? Are there no limits? We know that in some states, private actors have been permitted to charge 500-1,000% for loans, but what about public actors? Can you think of any debtor-credit practices that rise to the level of human right violations? This is question Chrystin Ondersma (Rutgers Newark School of Law) and I have been asking ourselves in connection with a project on which we are working.

Earlier this month, the New York Times ran a story that chronicled several people jailed for minor infractions (such as unpaid speeding tickets or other driving violations), and then charged huge prison costs after serving jail time resulting indirectly from these unpaid debts. For example, one woman was fined $179 for speeding, failed to show up at court (she says the ticket bore the wrong date), after which her license was revoked. When she was pulled over for driving without a license, her fees totaled over $1,500. Unable to pay, she was handed over to a private probation company and jailed, racking up an additional fee for every day behind bars. She’s been locked up three times for that one driving offense, serving 40 days, and now owes nearly $3,000. Another guy featured spent a total of 24 months in jail and owes $10,000 for what started out as very small dollar minor infractions. Read the article for more of the same.

Continue reading "When Serving Jail Time for Unpaid Debts Becomes a Debt Spiral" »

News Flash: It is Illegal for Debt Collectors to Stalk Debtors on Facebook or Threaten to Kill Their Dogs

posted by Nathalie Martin

Do any of you read creditcards.com? It is a great source of info on various topics, not just credit cards. Today’s story featured three debt collection horror tales, as well as a state of the nation of nasty collection efforts. According to the story, in 2011, the FTC received 180,000 complaints about debt collectors, an increase of over 40,000 from 2010. In one case, a debt collector filed a lawsuit against a California debt collector, hired by a funeral home, who threatened to dig up the body of the debtor's daughter -- and also to shoot her dog. Here is a run-down of three other featured stories. 

In the first one entitled “terrorized by text,” Jessica Burke fell behind on her car payments. She called the financing company, and they agreed to give her extra time to pay. But the next day, she got a call from a man using a fake name who threatened to sue. He got her address and other private information from her cell phone company (say what?) by impersonating her father and asking to be added to her account. He called and texted and called and texted, after some time of which she called the police, who ordered the collector to stop contacting her. But the texts continued for weeks, coming from a disguised number and implying that he was watching her. In one, he called her "Porky Pig" and a "200-pound slob" and added, "I got picture messages of you today." Late one night, she says, he texted her, claiming he was outside her house.She says: "It was

Continue reading "News Flash: It is Illegal for Debt Collectors to Stalk Debtors on Facebook or Threaten to Kill Their Dogs " »

Storage Wars and the Credit Practices Rule

posted by Bob Lawless

A few times I have caught Storage Wars, a television show on A&E. When storage units customers do not pay their fees, the contents are auctioned off by the storage unit company. The show follows professional treasure hunters who bid at these auctions. The catch is that the treasure hunters are purchasing the unit without full knowledge of the unit's contents. With all the drama of finding out what was behind door number three on Let's Make a Deal, viewers get to watch these treasure hunters paw through the storage unit's contents and try to profit by finding items of real value. Every now and then, an item of tremendous value might be uncovered. A few days ago, I started wondering how this was legal.

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Affidavits Are Not a Substitute for Evidence of Debt Ownership

posted by Bob Lawless

The Tennessee Court of Appeals has issued a decision that highlights the problems facing credit card debt collectors in a post-robosigning world (see here and here). The decision reaffirms what should be a simple principle in a debt-collection lawsuit. The burden is on the debt collector to show it owns the debt and to show the consumer is liable for the amount the debt collector asserts. The debt collector's say-so is not enough.

In LVNV Funding, the consumer had opened a Sears Gold Mastercard account in 1985 and was being sued for a balance that was a little more than $15,000. He had not used the account since 2001 and thought it had been settled in 2005.

One might first think Sears was the plaintiff. It was not. Sears had sold the account to Citibank, but Citibank was not the plaintiff either as it had sold the account to Sherman Financial Group. The plaintiff was LVNV Funding, a subsidiary of Sherman Financial to which the account had been assigned.

Continue reading "Affidavits Are Not a Substitute for Evidence of Debt Ownership" »

Accretive's Bedside Manner for Debt Collection

posted by Bob Lawless

The end of last week got a little busy for many of the Credit Slips bloggers and none of us talked about the story last Wednesday by Jessica Silver-Greenberg at the New York Times regarding aggressive debt collection practices by Accretive at hospitals. The allegations came to light in a report by Minnesota attorney general, Lori Swanson. Among the most appalling claims was that Accretive posted employees in emergency rooms, demanding payment before treatment was administered. Forget the legal side of this. How does a person or an organization get to a place where these sorts of tactics seem like the right thing to do? (In fairness, it should be noted that Accretive has denied the claims made by Attorney General Swanson.)

My colleague, John Colombo, has a post up at the Nonprofit Law Prof Blog discussing the tax-exempt status issues for nonprofit hospitals that deploy aggressive debt collection practices such as those alleged to have been done by Accretive. John's work raises a bigger question: should we still give nonprofit hospitals a tax exemption if they are not doing charitable work in a different sense of the word?

An Idea to Limit Body Attachments

posted by Bob Lawless

As many Credit Slips readers will know, so-called "body attachments" allow a creditor to haul a judgment debtor into state court if the debtor fails to respond to court summonses to answer questions about the debtor's financial affairs. It is a highly coercive tactic and was originally intended as a last resort against a recalcitrant debtor. Today, it is an overused tactic that intimidates debtors who often understand only that they have been arrested because they have an unpaid debt.

Continue reading "An Idea to Limit Body Attachments" »

Deepthroat: Debt Collector Edition

posted by Adam Levitin

The American Banker has been running an important series on credit card debt collection (here, here, and here) that Joe Nocera highlighted in his NY Times column today. The story that they're telling, however, is only part of the picture. To fully understand the debt collection industry, it's necessary to take Deepthroat's advice, and "follow the money." 

I haven't gone very far down this rabbit hole, but it's clear to me that there's another important angle to this story, namely, who is funding the debt collectors. 

Continue reading "Deepthroat: Debt Collector Edition" »

American Banker on Credit Card Debt Collections

posted by Bob Lawless

Jeff Horwitz at the American Banker has been doing some great reporting on abusive debt collection practices in the credit card industry. Joe Nocera's column took up the subject today. Robo-signing and other abuses have been a problem for a while with credit card debt collections, and Horwitz and Nocera do a public service by drawing attention to the problems. The situation cries out for congressional hearings and for regulatory investigation. It is great to see the Consumer Financial Protection Bureau make debt collection practices one of its top priorities.

Horwitz's articles at the American Banker include:

Maria Aspen at American Banker separately reported how the sloppy sales of delinquent credit card accounts and shoddy debt collection practices were a nightmare for one Maryland woman.

American Banker: Chase Has Halted Credit Card Collection Suits

posted by Bob Lawless

Yesterday, the American Banker reported that Chase has stopped filing lawsuits to collect consumer debtors. Moreover, they did it quietly and quickly. With concerns over sloppy procedures in debt collection, akin to the robo-signing problems in the mortgage industry, this news was quite interesting.

H/t to our reader who pointed me to the story.

Buy Here Pay Here Dealerships

posted by Katie Porter

The LA Times did a three-part series this fall on what they call "Buy Here Pay Here" car dealerships. (Here is Part One, Part Two, and Part Three). The name, which was new to me, comes from a common requirement that customers return to the lot to make their loan payments. The high-interest-rate loans are usually for aging, high-mileage vehicles to people with ragged credit. The idea of the "pay here" is to provide ample opportunity for dealers to keep track of the car's--and customer's--whereabouts and to increase the likelihood of repayment by customers.

One year ago (almost to the day), Credit Slips discussed the repossession rates for auto title loans. Unlike buy here/pay here, auto title loans are not to purchase a car but require a person to pledge their car's ownership if a loan is not paid back. Adam Levitin came up with an estimated rate of 14-18% for repossession on auto title loans but emphasized how difficult it was to get such data. Surprisingly to me, the LA Times managed to get the buy here/pay here industry to not just share--but to gloat--about how this business model works. The key data: 1)  About 1 in 4 buyers default. 2) The dealerships make an average profit of 38% on each sale, more than double the profit margin of conventional retail car chains.

Continue reading "Buy Here Pay Here Dealerships" »

Maryland Courts Require More Proof in Debt Collection Cases, Ringing in Some Debt Collection Cheer

posted by Nathalie Martin

In many states, a creditor or debt collector can easily obtain a default judgment with just a person’s name, last known address and Social Security number, and the judgment can follow the person around for years despite that the debt was never proven. Due to a flood of uncontested debt collection cases in Maryland, its high court has just ruled that for all cases filed on or after January 20, 2012, collectors and creditors must produce actual proof that the debtor incurred the debt. This can be done by producing a copy of a signed bill or contract, or other evidence of the debt. Debt buyers also must prove they actual hold the debt through a valid purchase, a common stumbling block for collecting debt buyers. In making this decision, the Maryland Court of Appeals (which is Maryland’s high court) took into consideration that many cases end in default judgments, a problem Nationwide. The decision also evidences a distrust of those pesky (often fraudulent) affidavits. Let’s hope other states decide to follow suit and put collectors to their proof.

The Value(s) of Foreclosure Law Reform?

posted by Melissa Jacoby

As Alan White reported recently, the Uniform Law Commission in the U.S. has named a committee to consider the need for and feasibility of proposing a uniform foreclosure act and to report back to the ULC by early 2012. A letter from the ULC president includes a list of questions that the committee is charged to consider. But what principles will guide their analysis of these questions?

Continue reading "The Value(s) of Foreclosure Law Reform?" »

NPR Reports that Debtors' Prisons Are Alive and Well

posted by Nathalie Martin

Although debtors' prisons are illegal across the country, you can apparently still end up in jail for an unpaid bill. I first came across this reality reading one of Lea Shepherd’s (Loyola Chicago) law review articles, Creditors Contempt. NPR  tells the story of Illinois debtor Robin Sanders in Illinois, who was stopped by police for a loud muffler but taken directly to jail on an arrest warrant for failure to appear at a hearing on an unpaid medical bill, all in a lawsuit she was unaware of. Similar stories have been reported in Indiana, Tennessee and Washington, and all involve selling debt to a collection agency, that then files a lawsuit against the debtor requiring a court appearance. A notice to appear in court is supposed to be given to the debtor. If they fail to show up, a warrant is issued for their arrest. According to the story, despite that debtor’s prisons were outlawed early in our country’s history, one-third of all states still allow people who have not paid bills to be jailed.

Continue reading "NPR Reports that Debtors' Prisons Are Alive and Well" »

OCC Servicing Settlement--Will Homeowners Get Screwed (Again)?

posted by Adam Levitin

The WSJ reports on the latest development in the implementation of the OCC's mortgage servicing fraud consent orders.  It seems that the banks will have OCC approved "independent" foreclosure review consultants (chosen and paid by the banks) review foreclosure files from 2009-2010 and pay homeowners damages if there are any problems found.  

This proposal really worries me.  It's hard to imagine that the banks will part with any money unless they receive releases--broad releases--from the homeowners.  The homeowners, however, will not typically have legal representation and will lack the ability adequately value their claims against the banks. $100 for a complete release?  Why not?  

Continue reading "OCC Servicing Settlement--Will Homeowners Get Screwed (Again)?" »

Exemption Policy: Sometimes it Doesn’t Pay to be Debt Free

posted by Nathalie Martin

We have two married 60-something friends who are artists in Santa Fe and own a very simple home with a rental house in the front. The house is tiny by all but New York City standards, and since their income is always in flux (some months several grand, many months nothing at all), they live very close to the bone. No credit card debts, no car payments, no mortgage.  The only fixed expenses they have are their $1,000 a month health care policy and a few utility bills. Generally, they get along just fine, but last month, when he ended up in the hospital for 5 days for literally swallowing wrong. 

Somehow, they now allegedly owe $30,000, despite the expensive health care policy. I know, there is supposed to be a $5,000 deductible limit per person, but there is something about a pre-existing condition etc. etc. She called to ask:  “they can’t take our house to pay a hospital bill, can they?” Given its location, this property is worth a lot, so we all know the answer. 
Now I know that no one exemption scheme can work for everyone, but these people have done everything right. They have lived a Dave Ramsey debt-free life, and while they could have saved more in traditional retirement vessels, they relied on Santa Fe’s outrageous real estate values to set them up for life. So I ask you, are our exemption policies out of sync with reality? Do they work for most people most of the time? I am suddenly dubious.      

Debt Collector Pseudonyms

posted by Adam Levitin

Story here about debt collectors using pseudonyms because of the abuse they get. I don't doubt it. Debt collectors aren't exactly popular folks. I was recently searching for cartoons of various consumer finance topics and there were by far the most about debt collectors, none flattering. But I don't think that makes it ok for a debt collector to use a pseudonym.

I think using a pseudonym might itself violate the Fair Debt Collection Practices Act.  The FDCPA prohibits "any false, deceptive, or misleading representation or means in connection with the collection of any debt," including "The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer."

I'm not sure that a consumer is likely to be harmed in any way by a debt collector using a pseudonym like John Smith, but perhaps use of a pseudonym emboldens debt collectors to be more aggressive. Remember, the Fair Debt Collection Practices Act has multiple provisions to protect debtors from abuse by debt collectors. (Hey, there's that "abuse" term that has everyone so worried in the Consumer Financial Protection Act...)

Of course, there's a wee enforcement problem--how does one know if a debt collector is using a pseudonym, unless it's something like "Barack Obama"? (Impersonating a government official is itself an FDCPA violation.)

Another Robo-Signing Problem

posted by Bob Lawless

The other shoe drops: allegations of robo-signing in credit card collections (courtesy of the AP and CNBC). If it is happening in assembly-line mortgage foreclosures, there is no reason to think it is not happening in other assembly-line debt collections.

Foreclosure-Gate Settlement--More Thoughts

posted by Adam Levitin

[Updated 3.8.11]

Some bloggers on the left (e.g. here) and on the fringe right (see here)  are upset with the servicing standard term sheet that got leaked because they think it just prohibits things that are already illegal.  This is an incorrect reading of the term sheet.  Let me give three examples.

Continue reading "Foreclosure-Gate Settlement--More Thoughts" »

Foreclosure-Gate Settlement?

posted by Adam Levitin

What appears to be part of a Foreclosure-gate settlement has been leaked.  There's a lot in this 27-page document, but here are some initial thoughts.

Continue reading "Foreclosure-Gate Settlement? " »

The Foreclosure Fraud Settlement

posted by Adam Levitin

The inter-regulator fight over the proper parameters of a foreclosure fraud settlement are really highlighting the changes in the financial regulatory world.  What we're told is that the OCC and Fed are urging a weak settlement, while FDIC, the state AGs, and the Consumer Financial Protection Bureau (CFPB) are pushing for a serious settlement.  

Parts of this line up look quite familiar, but parts are new and exciting.  

Continue reading "The Foreclosure Fraud Settlement" »

Bankruptcy Robosigning Business Challenged by Debtors, Trustee

posted by Alan White

A new amended class action complaint filed on behalf of Chapter 13 debtors, with their Trustee as additional plaintiff, describes in exhaustive detail the business of Lender Processing Services and its network of creditor attorneys and mortgage servicers.  The gist is that LPS sells the dominant software product to mortgage servicers, and the software is designed to refer all foreclosure and bankruptcy cases to LPS-affiliated firms, which then share legal fees earned by litigating stay motions and claims in bankruptcy with LPS companies.  In the process, LPS firms and their nonattorney employees allegedlly produce robosigned missing mortgage assignments and bankruptcy court filings.

This colorful pleading describes LPS as Mephistopheles and the participating law firms as Faust.  Some of the practices are familiar, thanks to Judge Sigmund's decision in the Taylor case, discussed here previously.  LPS and its affiliates, of course, vigorously dispute all allegations and claim that their business is perfectly legal, and does not constitute unauthorized practice of law, although their SEC filings are considerably more ambivalent on the latter point.

More details on this and related litigation are available in this detailed report.

Foreclosures in Violation of the Servicemembers' Civil Relief Act

posted by Adam Levitin

A few months ago, after the robosigning scandal broke, the banks assured us that they had done a thorough review of their foreclosure processes and everything was in order.  I seem to recall JPMorgan Chase's CEO Jaime Dimon stating in an Oct. 13, 2010 earnings call, "for the most part by the time you get to the end of the process we're not evicting people who deserve to stay in their house." Thus, by mid-fall, the banks had sounded the all clear sign, and said it was safe to go back in the waters. 

And yet now we learn that JPMorgan Chase has been engaged in wide-scale violations of the Servicemembers Civil Relief Act, including overcharging active duty military members on their mortgages and wrongfully foreclosing on their homes.  That's a lot of egg on JPM's face right now.  I guess, given the scope of JPMorgan's foreclosures, Dimon's "for the most part" statement is true, but it hardly instills confidence that our foreclosure process is working properly.

Banking is a business based on trust, and the farther we go down the foreclosuregate rabbit hole, the harder it becomes to believe the banks.  How many times are we going to keep believing the "there's nothing to see here folks" line?  Can we trust Jaime Dimon when he tells us that the situation is under control?  What happens to our financial institutions when they lose their credibility with the public?

Footnote:  anyone want to specultate on whether JPM as a servicer is liable for FDCPA violations? How about FCRA?

New Rule Requires that Collectors Disclose that a Debt is Time-Barred

posted by Nathalie Martin

Not too surprisingly, people are less likely to want to pay a debt that they can no longer be sued on. This fact has caused one state to require disclosure that a debt is time-barred, in order to comply with the state's unfair practices act. More specifically, the New Mexico Attorney General just released a rule requiring debt collectors to determine whether a debt is time-barred and to disclose this fact when collecting time-barred debt in New Mexico. The rule defines time-barred debt as "any debt that is not enforceable in a judicial proceeding because the applicable statute of limitations has run."A copy of the final rule, as well as the Attorney General's statement regarding adoption of the rule, is available here. For a little more information on how this came about, see this article by UNM psychology Professor Tim Goldsmith and I. We are thinking a few other states might follow suit.

Facebook: Not Just for Finding Hot Dates Anymore

posted by Nathalie Martin

In a case referred to as an “invasion of privacy on steroids,” a recent debt collector used Facebook to contact a debtor and demand payment of a $362 car loan. The company, Mark LLC out of Florida, told Melanie Beacham's family and friends on the social network site to have Melanie call them. Now Melanie is suing the debt collection agency for  various violations of the Fair Debt Collection Practice Act, including the Facebook fiasco, calling her six to 10 times a day by phone, sending text messages, contacting a neighbor, and sending a courier to deliver a letter to her workplace.Beacham's attorney has asked a judge to prohibit Mark One from contacting her or her family through Facebook or Twitter.This is obviously not the first time Facebook has been used in this way. Jeffrey Hyslip, a Chicago lawyer, said he had one client who was friended on Facebook by a young woman in a bikini. The account turned out to be a debt collector's, something his client realized only when the "friend" posted a message on his wall: "Pay your debts, you deadbeat."

Am I Paying for My House or the Brooklyn Bridge?

posted by Ethan Cohen-Cole

The foreclosure mess has raised new tough questions. We once again seem back to distributional issues. If a foreclosure is in question for a homeowner that has not been paying and a bank that has no good proof of its ownership, what should happen to the house?

1. The bank should get it because a homeowner that fails to pay should forfeit his/her collateral. Morally, why should this deadbeat get an asset for free? Particularly if the whole thing was stirred up by a lawyer. (See the WSJ article on this).

2. We should work through the mess in the courts to determine the validity of the individual case. No one should lose their home based on falsified documents. Careful determination ownership is important.

I have a new suggestion:

3. Any payments that the homeowner made to the bank, the one with no evidence of ownership, should be placed into a third party escrow account. 

Continue reading "Am I Paying for My House or the Brooklyn Bridge?" »

Debt Collector to Pay $1.75 Million

posted by Nathalie Martin

More Robo-news, this time robo- dialers.  Allied Interstate Inc., a large Minnesota debt collection agency with a history of consumer complaints, has agreed to pay $1.75 million to settle federal allegations that it broke the law by trying to collect debts people didn't owe, according to the Minneapolis Tribune today.  This is the second largest civil penalty the FTC has ever obtained against a debt collection firm. The suit brought, and the resulting settlement, send a message to the collections industry that repeatedly calling consumers who dispute a debt is not tolerated.

What are some other common collection infractions? Speaking to neighbors, co-workers or others about a consumer's debts, threatening legal action the collector does not intend to take, calling the wrong person, calling after being asked by a consumer in writing to stop calling, using foul language, and using "robo dialers," to automatically call the same people multiple times a day. With Allied, such calls continued even after people insisted the firm was calling the wrong person or that they did not owe the debt, the FTC alleged in a federal lawsuit.

Still, according to consumer attorneys, suits against collectors are few and far between and even this fine may not be enough to deter collectors. Quoting from the article above, attorney Peter berry of Minneapolis stated that  the “fine levied for this relentless abuse of consumers is tiny compared to the profits this agency made over the years engaging in that abuse."

The Shadow Consumer Bankruptcy System

posted by Alan White

    Bankruptcy filings have not risen at anything like the rate at which consumer debt defaults have risen since 2007.  Part of the explanation may lie in the shadow bankruptcy system, a network of alternative service providers who purport to save debt-burdened consumers from the bankruptcy court.  While consumers being sued on delinquent credit cards and mortgages receive solicitations in the mail from bankruptcy attorneys, they are also deluged with a variety of other offers of aid.  These range from foreclosure rescue scams to a wide range of legitimate and dubious debt advice and counseling services, to debt elimination and debt settlement schemes.  While pondering this post I searched in the usual places for any good empirical data on the number of consumers participating in non-profit counseling, or the number of customers enticed by those who promise to make debt disappear, with no success.   We don't seem to know how many debtors go to these debt advice services.

Continue reading "The Shadow Consumer Bankruptcy System" »

Automated Due Process

posted by Bob Lawless
Many Credit Slips readers likely saw the article on automated debt collection by Andrew Martin of the New York Times. If you did not yet find it, you almost certainly will want to read because . . . well, you read this blog. Martin chronicles how many debt collection lawsuits have become an output of automated processes, complete with computer-generated summons and complaints. The result is a strain on court resources and automated due process for litigants. After a day of getting the new web design working, I'm too tired to write very much about the article, but I'll raise a question for the comments. Do we really need new laws or rules to stop the abuses Martin chronicles or does existing law already empower judges with the tools to stop abusive debt-collection suits?

Debt Settlement Firms--Fraudulent Transfers

posted by Adam Levitin

There's a nice piece about debt settlement companies in the NYTimes.  

The story left me wondering whether Ms. Robertson, who paid $4,000 to the debt settlement firm without getting any debt relief might have a fraudulent transfer claim against them.  I recognize that it is far from clear whether such a suit would succeed; there is a REV question and an insolvency question at the very least, and the trustee might not want to litigate over what is at most a few thousand dollars in most cases.  Yet especially for no-asset cases, the avoidance action might be the only real value available for creditors.  

Does anyone know of fraudulent transfer suits being filed against debt settlement firms?  Are trustees or creditors starting to inquire at 341 meetings whether the debtor has been making debt settlement payments?  I'm curious to here whether practitioners have started to account for pre-bankruptcy debt settlement attempts.  

Protecting Public Benefits from Garnishment

posted by Katie Porter

 Mark Budnitz at Georgia State University College of Law, in coordination with the National Consumer Law Center, is asking law professors to sign on to a letter supporting a proposal by Treasury and other federal agencies to mandate crucial protection for persons receiving federal benefits such as Social Security. Regular Credit Slips readers may remember that guestblogger Nathalie Martin's post on this problem, "Think Public Benefits are Exempt from Execution? Think Again." Prof. Budnitz succintly describes the problem. He writes:

"These funds are exempt under federal statutes.  Congress intended the funds to be beyond the grasp of creditors.  Nevertheless, these funds are routinely frozen and seized by debt collectors. When a debt collector obtains a judgment, it serves a garnishment order on the consumer's bank.  The bank freezes the consumer's account; often the bank turns over the garnished amount to the debt collector without first giving the consumer any notice.  Most banks simply honor the state court order; they do not examine the bank account to determine whether the funds are exempt.  For consumers whose primary or sole income are federal benefit payments (e.g., Social Security, SSI, veterans benefits), the effect is devastating.  The consumer often first learns of the bank's freeze when checks start to bounce.  He or she has no money for food, medicine and other necessities.  The proposed regulation would correct this problem.  It sets out a clear, uniform procedure for banks to follow. It prohibits the freezing and the seizure of exempt funds."

    Over twenty law professors have already signed on to Budnitz's letter.  In addition to supporting the proposed regulation, it recommends a few improvements. If you are a law professor and you want to sign onto this letter, please contact Prof. Budnitz who will give you further information. Members of the public will be able to comment soon; instructions are here.

Life Imitates Art (or at Least My Final Exam)

posted by Bob Lawless

From the San Jose Mercury News, the headline says it all: "Repo man takes San Jose mom's car with 2-year old in back seat" (courtesy of The Consumerist). Now, a short essay from my Secured Credit final exam:

Cletus and Brandine Spuckler are in your law office and tell you the following tale of woe. They had borrowed money from the Burns Finance Company to pay for their 2007 Ford Expedition but have recently fell behind on their payments. Burns Finance Company has a valid, perfected security interest in the 2007 Ford Expedition. One morning, Brandine found that Cletus’s tractor was blocking the driveway when she needed to take two of their kids to preschool. Consequently, Brandine loaded the two kids in the Expedition, got the tractor keys from Cletus, backed the tractor out, then backed out the Expedition, and then returned the tractor to its place on their driveway. She left the Expedition running in the street, with the keys in the ignition and the kids in the backseat. While Brandine went back inside to return the keys to Cletus, an employee of Burns Finance repossessed the automobile, driving off in it with the kids in the back seat. The employee got about three blocks when he saw the kids, and he promptly returned the Expedition to Brandine, who was emotionally distraught having seen a stranger drive off with her kids. Since that time, both Brandine and the two children have been unable to sleep and are emotionally upset. Putting aside the question of any tort claims, do you think the Spucklers have any valid claims under the Uniform Commercial Code?

I based the question on Chapa v. Traciers & Associates, 267 S.W.3d 386 (Tex. App. 2008). Still, I thought I was making this up. Who knew?

Continue reading "Life Imitates Art (or at Least My Final Exam)" »

Usury and Securitization

posted by Adam Levitin

Most institutional lenders in the United States are not subject to usury laws.  National banks can evade they by basing themselves in states without usury laws and exporting the laxer regulation to other jurisdictions.  State institutions often find themselves exempt because of state banking parity laws.  And usury laws are preempted for many mortgages by federal law (although originally the FHA eligibility rate cap--removed in 1983--served as a de facto federal usury law for many mortgages). 

There's plenty to say (at another date) about whether usury laws are good policy.  I want to raise a related legal question for discussion on the Slips:  are debts held in securitized pools subject to usury laws? 

Continue reading "Usury and Securitization" »

Debt Collectors Are Not Always "Debt Collectors"

posted by Bob Lawless

This just in from our Tampa bureau: a debt collector threatens a debtor and his family, including the lovely threat "I'm going to f*** you up" if you don't pay. Abusive debt collection practices seem to be pretty widespread but are rarely the subject of much enforcement or litigation. This time it might be different because the debtor recorded the call. The debtor has filed a lawsuit against the creditor, Jacksonville Check Cashers. The Consumerist was all over this story as well as a local TV news channel which has the original audio.

Here's the catch -- it is not clear that this particular situation violated the federal Fair Debt Collection Practices Act (FDCPA). Although that law prohibits abusive phone calls and threats, it also defines a "debt collector" as someone who collects debts on behalf of another. In this case, it was an employee of the creditor, which the FDCPA specifically says is not considered collecting debts on behalf of another. Florida has its own state law, but it seems to have the same definition. Because the creditor was acting on its behalf, these laws do not apply. The bottom line is that a debt collector is not always a "debt collector" for purposes of the law.

That is not to say the debt collector and his employer will avoid any penalties. The actions might constitute an assault (but probably not) or intentional infliction of emotional distress (but what are the damages?). Maybe there are other causes of action under Florida state law? Similarly, there may be regulatory consequences from the state licensing authorities. It would be much better, however, if the debtor could enforce his rights under the debt collection laws. The whole episode is another reminder that it is time to revisit the FDCPA and bring it up-to-date with modern commercial reality.

Lying Is Wrong

posted by Katie Porter

You might think that we all caught the lesson that lying is wrong somewhere between Sunday School and warnings that Santa only brings presents to good boys and girls. But an Ohio federal court recently caught a debt buyer making a a load of lies--under oath, no less. The opinion in Midland Funding v. Brent shows the underbelly of debt collection and just how far such high-volume, routinized, computerized processes have strayed from the idealized litigation model of truth-telling.

The case began when a debt buyer purchased defaulted credit card debt and filed suit against a consumer. The debt buyer's law firm used the debt buyer's "You've Got Claims" system (really, that is its name) to request an affidavit from the debt buyer to file in support of the collection case. Where do such affidavits come from? According to later testimony of the debt buyer's employee who signs 200 to 400 affidavits per day, "they just come from the printer" (again, I'm not making this up.) The court couldn't square that answer with the first paragraph of the affidavit in which the employee attests that "I make the statements herein based upon my personal knowledge." The court goes on to describe the affiant's lack of knowledge of nearly all the facts in the affidavit, noting that the affiant did not retain the attorney, was not familiar with the account, did not know the last time a payment was made, did not know if the consumer was a minor or mentally incapacitated, and did not know the outstanding balance. As an additional disability, the affidavit wasn't actually signed in the presence of a notary, making it improperly sworn. The court ruled that the use of the false, deceptive and misleading affidavit in the debt collection suit was a violation of the Fair Debt Collection Practices Act.

The law in Midland is boring. It is wrong to lie to a court, and it is wrong to lie in a debt collection. The action here is that there actually was an action. Some consumer went to the effort to put a debt buyer's affidavit to the test, leading to the conclusion that the process for generating such affidavits was sorely lacking. How many debt buyers, or default mortgage servicers, also have employees who get their affidavits "from the printer?" Or who have "personal knowledge" of consumers they have never met and of accounts they have never reviewed? Or who send affidavits "off to be notarized?" If the processes used here are typical of the industry, there could be a lot of liars out of luck.

The Benefits of Being Litigious

posted by Katie Porter

Adam and I have recently discussed our take on whether and why the Fair Debt Collection Practices Act (FDCPA) should apply to mortgage servicers. The take-away was that the current interpretation of the FDCPA, based on its legislative history, is that it does not typically apply to mortgage servicers.

But perhaps debtors should be challenging that interpretation. Although the weight of case law suggests it would be a difficult litigation victory, it turns out that suing under the FDCPA, regardless of outcome, has a crucial side effect. Columbia Financial International sent me an email a few months ago advertising a brand new feature--the opportunity to scrub a collection database against its FDCPA litigant database. Columbia Financial advertises that this Litigant Alert service "empowers you to protect yourself from overly-litigious debtors" and "find out immediately if you are collecting against anybody with a history of suing collection agencies."

What is the implication of this advertising? It suggests to me that if a debt collector found a match, i.e., was collecting from someone who was an FDCPA plaintiff, the debt collector should what . . . . either stop collecting or start complying with the FDCPA? The industry is supposed to already be complying with the FDCPA; we've heard lots of stories about the burden that it puts on collectors--to log and record their calls, to add a debt collection notice to their correspondence, etc. If a collector is in full compliance, why care if someone has sued another debt collector who may not have obeyed the FDCPA. Perhaps the suggestion is that debtors bring malicious and ungrounded lawsuits, alleging FDCPA allegations when there are none? The "overly litigious" description of FDCPA litigants certainly suggests that debtors have engaged in wrongdoing by filing claims. But notice the perverse incentive created for consumers--the apparent benefit of filing an FDCPA lawsuit is a respite from dunning and collection efforts.

Private Tax Collection

posted by Bob Lawless

The New York Times has a story today that Credit Slips readers will want to check out. It catalogs the growing trend of local governments to sell their real estate tax debts to private investors. The reporter, Jack Healy, succinctly states the opposing policy points:

Investors say the arrangement actually benefits everyone. School districts, fire departments and public parks get an infusion of cash. The investors take on a risky but potentially high-yielding investment. And taxpayers do not have to pick up the slack from scofflaw landlords or tax evaders.

Governments, of course, can charge interest and penalties too, and they foreclose on properties for back taxes. But governments charge interest rates that are half what private investors charge — often offering no-interest payment plans — and are also more likely to be concerned about the long-term prospects of neighborhoods.

All good points, but there is nothing that the ivory tower can't make more confusing.

Continue reading "Private Tax Collection" »


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