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Collection Actions: 2.1.8 Reason # 8: Debt Collector May Have to Pay the Consumer’s Attorney Fees

Attorneys often shy away from collection cases for fear their time will be uncompensated. The consumer may be willing to offer a modest retainer, but this may not cover the attorney’s time and expenses. Nevertheless, there are a number of ways that a prevailing consumer can recover attorney fees from the collector, as set out in § 18.1, infra. Fees may be recovered by statute in about twenty states.

Collection Actions: 2.1.10 Reason #10: Defending Against a Collection Action Allows for a Class Action to Stay in State Court

The Class Action Fairness Act (CAFA) has resulted in many state court consumer class actions being removed to federal court.23 Class actions can avoid removal and stay in state court only if they allege state law causes of action and include fewer than 100 class members, or seek less than $5 million. Otherwise they can be removed to federal court unless two-thirds of the class members and all the primary defendants are residents of the state.24

Collection Actions: 2.2.1 Obtaining Clients

According to a Consumer Financial Protection Bureau national survey of consumer experiences with debt collection in a one-year period, creditors or other collectors sued more than ten million consumers.27 Most empirical studies have found that only 1% to 2% of these consumers are ever represented by a lawyer,28 leaving millions of unrepresented consumers in collection actions across the country.

Collection Actions: 2.2.2 Office Resources

The consumer attorney should obtain copies of all court rules for the courts in which collection actions are traditionally brought in that state. Across the country, there are many “rocket docket” debt collection courts that may have their own unique written (or unwritten) rules, so it is important to check with other lawyers or the clerks and judges who run the debt collection docket.

Collection Actions: 2.3.3 Reviewing the Consumer’s Credit Report

A consumer’s credit report is a key document that can help the attorney unravel many aspects of a case. It will usually show the current status of an account, the amount owed, and who provided that information. It will also show the history of the account and who reported that historical information.

Collection Actions: 2.3.4.1 Debt Collection Should Not Force Clients Into Making the Wrong Decisions

If the client has not yet been sued—and a lawsuit does not appear imminent—the client may only need advice on dealing with debt collection communications. An important point is that clients should not let debt collection harassment force them into making wrong decisions. Clients should make their own choices about which debts to pay first based on what is best for them. It is more important for clients to keep up with rent or mortgage payments, utility bills, car payments and the like than with a credit card bill. The wrong choice can result in the loss of a home or a car.

Collection Actions: 2.3.4.3 “Debt Parking”—Reporting Debts to a Credit Reporting Agency Without Providing Notice to the Consumer

The practice of reporting a debt to a credit reporting agency (CRA) without first providing notice of the alleged debt to the consumer is called “debt parking.” Until recently, debt collection agencies and debt buyers often did not bother to contact consumers about alleged medical, rental or other forms of debt. Instead, they reported the debt to a CRA and waited until a consumer’s application for new housing, employment, or credit was denied based on the delinquent debt.

Collection Actions: 2.3.6 Revoking Consent for Robocalls on Other Debts

It is less likely that the consumer will continue to receive robocalls on their cell phone for the debt presently in litigation. However, clients often have more than one debt, and it can be useful to contact all other creditors and debt collectors and revoke the consent for calls to the client’s cell phone or landline. The client should then be asked to keep a careful record of any subsequent robocalls from each source.

Collection Actions: 2.3.7 Evaluating the Debt Collector and the Debt Collector’s Attorney

A key factor in any collection action will be an appraisal of the litigation tactics that are typical of both the debt collector and the debt collector’s attorney. Do the debt collector and collection attorney typically pursue cases aggressively, or do they drop them upon the first hint that the matter will be contested? Is the debt collector’s attorney even familiar with what is necessary to prevail in a contested action or does the attorney simply file cases in bulk hoping for default judgments?

Collection Actions: 2.3.8 Do Judgment-Proof Debtors Need Representation?

An important part of a client interview is to understand the client’s assets and income that are at risk if the collector prevails in the court action. A debtor who possesses only exempt income and assets is referred to as “judgment proof” or “collection proof.” While a judgment may be taken against such a person, the creditor cannot compel collection of the judgment from the debtor’s income or assets, unless the debtor fails to properly claim the exemption or circumstances change.

Collection Actions: 2.3.9.3 The Debt Collector

Probably no factor will be as determinative of the nature of the litigation as the identity of the debt collector and, in particular, whether the debt collector is a debt buyer or the original creditor. A debt buyer will have purchased a debt for pennies on the dollar—a debt that the original creditor had decided was not worth pursuing.

Collection Actions: 2.3.9.4 Other Factors

Good facts make good law. Do not try to make new law in a case in which the consumer clearly owes the money. It is much better to raise new legal theories when there is a good argument that the consumer does not owe the money and when the consumer is otherwise sympathetic.

Collection Actions: 2.3.9.5 Declining or Accepting Client Representation

For any number of reasons, an attorney may decide against formally representing a consumer. In that case, it is recommended to provide the consumer with correspondence in which the attorney clearly declines to provide such representation. This prevents any confusion as to whether the attorney is handling the case, and protects the attorney if the consumer—for example, after being garnished—alleges later on that the attorney should have been taking care of things.

Collection Actions: 2.4.2 Bank Accounts

A debt collector with a judgment can seize non-exempt funds from the consumer’s bank account, and even certain exempt funds may be subject to a freeze. Procedures to “unfreeze” an account vary by state. In some states the consumer must fill out, file with the court, and serve on the collector a form stating that the funds in the account are exempt and provide accompanying proof.

Collection Actions: 2.4.3 Wages

Federal law protects a certain portion of wages from garnishment—the dollar amount is linked to the federal minimum wage. Some states protect a larger portion of a consumer’s wages than federal law, and these greater protections will apply instead of the federal standard.77

Collection Actions: 7.6.3 Repossession

Section 3952 of the SCRA forbids self-help repossession of real or personal property if a servicemember made a payment under a purchase contract prior to entering active duty.182 This prohibition applies regardless of whether there are co-signers and whether the servicemember is the principal obligor, and it applies whether the delinquency arose prior to or during the servicemember’s active duty.

Collection Actions: 10.2.3 Release of Information to Credit Reporting Agencies and Others

The Claims Collection Act authorizes federal agencies to disclose debtor information to credit reporting agencies.52 This authority does not apply to tax debts, debts arising under the Social Security Act (other than certain overpayments), or debts for tariffs.53 Information that may be released is limited to the name, address, and Social Security number of the obligor, the amount, status, and history of the claim, and the agency involved.54

Collection Actions: 10.2.15.5 Federal Tort Claims Act

The Federal Tort Claims Act (FTCA)365 may provide an avenue for redress against a federal agency for negligence or certain intentional torts committed by its employees. The FTCA acts as a statutory waiver of the United States’ sovereign immunity for tortious conduct.366

Collection Actions: 10.3.3.4 Installment Payment Orders

If the government shows that the judgment debtor is receiving or will receive substantial non-exempt disposable earnings from self-employment that are not subject to garnishment, or is diverting or concealing earnings, the court may order the judgment debtor to make specified installment payments.511 The statute512 defines “nonexempt disposable earnings” as “25% of disposable earnings, subject to section 303 of the Consumer Credit Protection Act”513