Jacksonville Area Legal Aid, Inc.
Protecting Consumers in Debt Collection Litigation and Arbitration: A Series of Roundtable Discussions" - August, September, and December, 2009
I am sure I speak for many when I thank the Federal Trade Commission for creating an open forum for consumer and debt collector advocates and members of the judiciary to discuss the topics relating to Protecting Consumers in Debt Collection Litigation and Arbitration. During the three workshop opportunities advocates and members of the judiciary discussed problems relating to many aspects of the debt collection practice. In my experience as a Florida legal aid attorney, I find the majority of debt collection cases are brought in small claims or county court. Most defendants are either unable to retain legal representation because they can not afford it or the amounts involved in the lawsuit do not warrant involvement of counsel. Some of the problems highlighted at the three FTC events were insufficiency of service of process and due process problems relating to arbitration. Also discussed at length were problems often stemming from large volume litigation models and debt buyer practices such as the failure to provide adequate proof of liability for the debt, terms of the underlying contract, including interest, amounts due and ownership of debt. These gaps in the legal process are compounded by an increase in identity theft and the prosecution of out of statute, satisfied or discharged debt. Often the only contact the defendant has with legal counsel is when they talk to plaintiff’s counsel before the hearing date or on the "courthouse steps." Plaintiff's counsel generally will not assist the Defendant in pointing out deficiencies in the plaintiff’s case such as an inability to substantiate the liability, ownership of the debt or amounts due or of potential defenses such as the passing of the statute of limitations. Instead, plaintiff's counsel will just attempt to avoid the expenditure of time needed to obtain a judgment and/or the scrutiny of the merits of their case by the court by encouraging the defendant to agree to a judgment without the benefit of counsel. The Courts are severely overwhelmed and underfunded so can not be expected to provide resources to level the playing field. An alternative solution is to allow non-profit law firms and pro bono resources to provide information to or otherwise counsel defendants before they have to make a decision about what to do about their case. Many legal services organizations do not have the resources to help consumers with debt collection matters, however, most states require or encourage the private bar to give back to the community by providing pro bono assistance. Also, law school clinics are often available to assist with the dissemination of information under the supervision of a licensed attorney. Presenter, Carolyn Coffee of MFY Legal Services helped create an effective and helpful program for pro se litigants in New York. Unfortunately, debt collector groups in other places have cited judicial inefficiency and improper solicitation to thwart the efforts of other non-profit law firms and pro bono resources wanting to education consumer defendants. The American judicial system contemplates that each party have the opportunity for a meaningful day in court. The debt collection bar should not be creating impediments against efforts to educate consumer defendants and the FTC should support efforts to level the playing field especially given all of the problems with the debt collection process. Again thank you for allowing us to come together and share our differing views, opinions and suggestions.