Tuesday, July 31, 2012

FRE 803(B)(6) and How Can Consumer Prevail in Debt Collection Litigation

You may have heard of or even know someone who has had their wages garnished by a collection agency; and you may wonder, "Can they even do this?" The answer is yes, but not without a court order. Every year, collection agencies are inundating courtrooms with thousands of lawsuits filed against debtors. This situation is somewhat unfortunate for consumers for two reasons. One, delinquent accounts reach collection agencies because the original creditors have already given up hope of obtaining payments and have decided to abandon them. Two, although collection agencies have purchased the accounts for a fraction of the cost, they are pursuing consumers for the full debt amount. Invariably, they win in court because uninformed consumers do not attempt to fight the claim. They are also unaware that collection agencies are relying, improperly, on Federal Rule of Evidence (FRE) 803(b)(6) to introduce evidence in support of their claim.

First, let's clarify that there are different stages in the process of debt collection. For example, when a consumer stops making payment, the original creditor may initially rely on its internal collection department or may contract with a third-party agency to collect payment on its behalf. In both cases, the original creditor still owes the bad debt. There comes a time, however, when the company will lose hope of obtaining any more payments. It will then make a business decision to close the account and write off the remaining debt balance. When a "charge off" is recorded, the company can claim a tax loss on the unpaid balance and the customer will see a negative notation appear on its credit report, regardless of whether the debt is later paid off or not. Accounts that have been closed are sold to "debt buyers" for a fraction of their value. In fact, it is not rare for collection accounts to be bought and resold multiple times. One must realize that at that point, consumers no longer have any contractual obligation toward the original creditor (who no longer owes the bad debt). However, they are now left to deal with collection agencies.

Of course, "debt purchasers" will go to great lengths to pursue payments. If they believe that customers have funds, they may start legal proceedings to obtain a judgment and a court order for wages garnishment. Be aware that agencies need proof that they properly served consumers. Proper service notifies consumers that a claim has been filed against them so that they can defend it in court. Failure to properly serve consumers will result in a judgment that can later be voided.

Too many times, consumers ignore a legal complaint because they are either scared or do not have the means to hire counsel. And so, they fail to take action, hoping the problem will go away. This is the worst approach consumers can take because collection agencies will automatically win the judgment. So, an answer to a complaint always needs be filled out in a timely manner. As defendants to a lawsuit, consumers should not admit any allegations made in the complaint but instead should request proof of what is being alleged, especially proof that the collection agency now owes the account. After all, consumers never entered into any contractual agreement with the collection agencies. They often don't know which companies have purchased their account, let alone the fact that their account was even purchased in the first place. In addition, as mentioned before, accounts are often sold multiple times; and sometimes documentary evidence of debt assignment may have been lost. This fact alone is sometimes sufficient for collection agencies to drop the lawsuit.

If the case goes to court, consumers should not fear that the burden will be placed on them to answer incriminating questions. Indeed, in our legal system, the party who initiates the lawsuit has to prove its case first. Essentially, the collection agencies need to establish that they are now the party to whom customers owe the debt. So in theory, they would need to present evidence that the original creditor sold them the account, or, if the account was purchased and sold multiple times, evidence of the entire chain of debt assignments. Although business records are hearsay, they can be admitted as evidence - as an exception to the hearsay rule under FRE 803(b)(6) - on the condition that a record custodian employed by the company comes to court, identifies the documents and testifies from them. However, be advised that a record custodian can only testify from records generated by his or her place of employment, and not from those generated by another business entity. Is this important? Absolutely, because it means that the record custodian that will be present in the courtroom cannot testify from documents that have been prepared by the original creditor or the previous collection agencies. When the custodian is not allowed to introduce, as evidence of debt assignment, documents prepared by the original creditor, she cannot prove that the collection agency owes the account.

Thursday, July 12, 2012

Hiring a Bankruptcy Attorney Pros and Cons

A bankruptcy attorney is a legal professional who focuses mainly on counseling and guiding his clients regarding their financial states. He basically plays an important part in giving advice to the person in a financial crisis. The advice and counsel revolves around what type of bankrupt state the person can claim as well as what properties are exempt in this state. The filing of the claim can also be quite confusing for many of those who are not familiar with the terms and the systems that are necessary in doing so in the courts. The lawyer can step in and extend help for those who have some difficulty understanding the system and organizing their thoughts about their financial status. Despite being very good help to those who are in financial crises, there is also a downside to hiring one.

Pros and Cons

The pros and cons of hiring a bankruptcy attorney are various. It should be mentioned, though, that the downside to hiring one is not as heavy as the upside of doing so. One of the good things about getting this type of legal representative is that they actually focus on the different aspects of the state of being bankrupt. They know all about the different other fields of laws that are related to this state and they can advise the client regarding which state is better to claim. In other words, they are experts of this in the financial law concept. In this regard, they know what can be expected if their client pursues an avenue of law that is connected to this. Yet another good thing about hiring these lawyers is that they can actually assess the individual's status and counsel the person whether it is a good idea to declare oneself as bankrupt or to pursue another avenue related to this. The bankruptcy attorney can recommend some actions and alternatives which may prevent the individual from actually declaring this state of financial crisis. There are some ways to actually ask the people who hold the debt to extend the loan or give some kind of consideration to the person who owes money. Some credit card companies allow for arrangements to be set in order for the debtor to pay off the debt slowly but surely.

The downside to hiring a lawyer of this caliber is that they can be an additional cost to the already broke individual. Legal representation and counsel do not come cheap and some of these professionals can ask for top dollar for their services. There are some who allow payment for their services to be broken down but this just means that the person who is in a financial crisis has another additional debt to pay. The bankruptcy attorney might also be in a hurry to file the claim and not assess the case well enough to consider other options. Some of these professionals might take the case at face value and just go through the easiest course even though there are other alternatives.