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5 Topics in 5 Minutes

Posted By Administration, Thursday, February 6, 2020
Updated: Friday, February 21, 2020

by Mark Groves, President

NCBA members help consumers understand and work toward a fair resolution to resolve debt.

1. How was your firm’s 2019 – poor, fair, good, great?

In interviews with a large number of you over the past few months, 91% answered that 2019 was a great year for your firm. Why was the year great? The leading reasons cited were a) the economy and full employment; b) steady new client and business referrals; and c) moderating regulatory uncertainty. The leading reasons cited by the 9% of respondents who reported a good year were: a) fewer foreclosure and bankruptcy referrals; b) meritless FDCPA litigation; and c) higher costs of compliance, insurance, technology, and staff.

 

2. NCBA means business

75% of NCBA members report having received new business referrals from a fellow NCBA member. If you want to maximize your firm’s visibility with your peers, make sure your firm’s listing(s) is/are up to date in the member directory. Make plans to attend the Spring 2020 Atlanta conference. Join a committee or task force and volunteer for NCBA. These small action steps will help you increase business opportunities in 2020 and beyond.

 

3. February’s topic and poll – Bench Warrants, Civil Capias, Body Attachments

You probably have seen stories on “Debtors' Prisons” that report on the practice of bench warrants aka capias. Even though debtor prisons were abolished in the United States in 1833, modern media accounts about the practice rarely examine how and when they arise (and how rare such proceedings are used). Many of these stories reflect a misunderstanding of the law and our role as creditor attorneys in the process. In fact:

  • Not a single consumer today is jailed for failure to pay a debt.
  • Creditors have no ability or authority to request or issue an arrest warrant because a debt is unpaid.
  • Only a judge can order bench warrants and that will only occur in response to a complete and utter disregard for a court’s prior orders, summonses, or subpoenas.
  • A great number of clients specifically and expressly direct NCBA attorneys to avoid taking action that would risk arrest as an outcome.

Poll:

1. In the last year, have your firm’s attorneys used statutory remedies or court rules that have resulted in a bench warrant?

2. Would you support a NCBA resolution that NCBA members will not request a court to issue a bench warrant, capias, or body attachment in a consumer debt action that would result in a consumer being arrested?

Take the poll

Note: The results will be announced in my March column. All responses are anonymous.

 

4. Why I love being a consumer debt resolution attorney?

Like many of you, each month, our firm’s collections department holds a floor meeting at our office attended by attorneys, managers, and staff. We go over key points and reward excellence (and eat!). Invariably, the highlight of our meeting is our reading and recognition of the compliments we have received the prior month from consumers, attorneys, court clerks, judges, and clients. The most rewarding of these are always those from consumer debtors that tell a story of how we listened to and empathized with them, and how we arrived at a solution that brought relief and satisfaction to the consumer.

Here are two “debtor declarations” from recent meetings at our office:

“I wanted to thank the entire call center for your understanding and willingness to help. I feel as though every representative I've spoken with has been generous and I really appreciate you working with me. After losing my husband during active duty last year and battling breast cancer myself, I went through a hard time and appreciate you all for your compassion and eagerness to help.”

“I appreciate all you did to help me resolve this situation that would leave me in a better financial position. You had no incentive or reason to help me and you did anyway; you have no idea how appreciative I am of that. We often forget that we are all humans and that a turn of events could easily change our entire life, so I very much appreciate all that you have done taking this into account while still representing the best interest of your client. I wish all the best to you and I am certain this will come back to you, even the simplest of good deeds do.”

As Dr. Seuss famously said, “[t]o the world you may be one person. But to one person you may be the world.” I am confident that your firms are also receiving, logging, and rewarding similar shout outs.

Please share your firm’s story and how you incentivize and reward 5-star service by sending a short email to me at mgroves@glasserlaw.com.

 

5. First impressions – powerful introductions fuel favorable feelings

Researchers have concluded that we only have 7 seconds to make a first impression. As creditors rights attorneys, how do we introduce ourselves (including what we do for a living) to our friends, neighbors, and local legislators? Is it interesting? Is it relevant? What problems do we solve and what value do we add? How do we make a difference?

Here are three possibilities:

  1. Hello, my name is __.  I am an attorney in consumer debt resolution and my passion is to facilitate fair and transparent processes to enable consumers to understand and resolve debt.
  2. Hello my name is __.  I am an attorney engaged in creditor rights law and I have committed my practice to helping consumers get through the stress of past due debts through compliant, professional, and courteous methods.
  3. Hello my name is __.   I am an attorney practicing debtor-creditor relations and I believe in helping consumers work through past-due debt issues while helping lenders do the right thing even when a customer has failed to repay money loaned.

Which, if any, do you like?  Please vote here. Do you have a suggestion on making a great introduction?  Please email me at mgroves@glasserlaw.com.

 

Mark

 

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Advocacy, Lobbying, and The Grateful Dead

Posted By Administration, Thursday, January 30, 2020
Updated: Friday, February 21, 2020

by Nathan Willner

NCBA Government Affairs Officer

What does The Grateful Dead have to do with advocacy? More on that later.

I am happy to report that 2020 has started off with NCBA’s advocacy effort running on all cylinders. To organize all of the Association’s advocacy efforts and initiatives, advocacy now has its own pillar with multiple sub-committees focusing on those areas that are of primary importance. This pillar is being Co-Chaired by the very capable Brit Suttell and Chip Stacy. As we monitor and engage members of congress on both pending legislation and our own legislative initiatives NCBA will be establishing an annual Advocacy Day in Washington, D.C. All members interested in meeting with members of the U.S. Congress and their staff members please save the date of April 20-21, 2020. More information on this exciting event will be coming soon.

Another exciting new initiative is the State Creditors Bar Association Leadership Forum. This Forum, led by Adam Cleveland and Brian Cloud, will meet via conference call monthly and have a dedicate lunch reception at our bi-annual conferences. We already had our first monthly call that was extremely well attended. Besides hearing from multiple state leaders on what legislative issues they are dealing with in their local legislatures, we heard a presentation on testifying effectively before your state legislative committee. We intend to blend information sharing and short informative presentations on these calls to support and promote our State Creditors Bar Associations leaders.

Our desire is to make sure that our practice area’s story of professionalism and compliance is properly told to the general public; we are in the process of developing clear forward-facing policy priorities for 2020 as well. Part of an effective advocacy strategy is to have a PAC to be able to support and engage legislators. To that end we are taking a deep dive look at our PAC and, under the leadership of Scott Morris, we are doing just that. Stay tuned for more information on PAC activities as we review this important segment of NCBA’s advocacy.

Another segment of our advocacy efforts is to build and maintain coalitions with other industry and legal organization participants. To that end NCBA participated in multiple coalition calls including federal legislation and state-focused groups. States that have already established coalitions include Florida, Massachusetts, Washington, and Maryland, among others in formation.

NCBA is also fortunate to have a robust Amicus Brief Committee, led by Crystal Duplay and Ron Miller. The committee was fortunate to be able to engage veteran attorney Ron Canter to draft an amicus brief on behalf of NCBA and the Florida State Creditors Bar Association in the case of Ham and Foxall v. PRA, now pending before the Supreme Court of Florida. Filing an amicus in cases that have potential national ramifications and affect our members is a key segment of both promoting and advocating for NCBA practitioners.

Finally, as we await the CFPB’s final rule on debt collection and the release of a supplemental proposed rule on time-barred debt, we continue to develop NCBA’s strategy of CFPB engagement. Planning educational sessions and post rule strategy is a primary focus of NCBA leadership. Meetings with key members of the CFPB’s staff are also being scheduled as part of this critical engagement.

So now back to The Grateful Dead. These poignant lyrics of Jerry Garcia always bring home what makes an advocate effective:

“The story teller makes no choice,

soon you will not hear his voice,

his job is to shed light, and not to master.”

As we craft our message both in the media, the halls of Congress and state legislatures throughout the country, our task is to shed light, make the story bigger than just one issue or circumstance, and present a message that places our members and practice area on the highest professional and ethical levels of the practice of law. Together, NCBA will continue to be recognized as the premier advocate for attorneys practicing creditors rights law.

It is going to be a productive year ahead.

Tags:  advocacy 

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Maryland Collection Attorneys Subject to Back to Back Court of Appeal Rulings

Posted By Administration, Thursday, January 30, 2020
Updated: Friday, February 21, 2020

By Ronald S. Canter, Esquire

The Law Offices of Ronald S. Canter, LLC

On January 27, 2020 the Maryland Court of Appeals, in a 4-3 ruling, held that homeowner association assessments (HOA) come within the definition of a “consumer debt” under the Maryland Consumer Protection Act (MCPA) and that the use of a promissory note containing a confession of judgment clause to secure payment of delinquent assessments is a violation of the MCPA’s prohibition on using confession of judgment clause in consumer contracts.[Goshen Run v. Cisneros  (Case No. 3, September Term 2019)]

The court relied on cases decided by Federal courts under the Fair Debt Collection Practices Act in holding that debts to HOAs are consumer obligations. The Court rejected the HOA’s argument that the inclusion of a non-waiver of defense provisions in the note meant that the obligation was not a true confession of judgment. The Court determined that the statutory definition of a confessed judgment note, which provides that it “waives the consumer’s right to assert legal defenses to an action”, was merely descriptive as to what a confession of judgment clause typically provides and does not establish a separate element that must be satisfied to bring a confession of judgment clause within the kind of consumer contract prohibited by the MCPA.

The Court upheld the dismissal of the confession of judgment lawsuit but determined that the dismissal was without prejudice, thereby permitting the HOA to refile the suit as one for breach of contract. Although the HOA was permitted to refile its suit to collect unpaid assessments, it now faces a consumer class action lawsuit in Federal Court that was filed prior to the Court of Appeals’ ruling but still pending as of the date of the decision.

Even though this action was filed against the HOA, Maryland lawyers who sue on a confession of judgment clause based on delinquent HOA assessments could face potential exposure under the Fair Debt Collection Practices Act for taking an action that could not legally be taken.  Additionally, Maryland lawyers can also be sued under the Maryland Consumer Debt Collection Act.

The following day, the Court of Appeals, in a case of first impression, [Andrews & Lawrence, et al. v. Mills, (Case No. 5, September Term 2019)] held that the “professional services” exemption accorded to attorneys from claims under the Maryland Consumer Protection Act (MCPA) does not apply where the lawyer is providing debt collection services that can also be furnished by a licensed debt collection agency. 

This ruling will likely increase the number of lawsuits against Maryland attorneys who engage in non-litigation collection activity, such as the sending of demand letters and the negotiating of settlements of debts, where it is alleged those activities violate the Maryland Consumer Debt Collection Act (MCDCA) which prohibits, for example, claiming sums not permitted by law. (See, Section 14-202(8), CL Article. )  Although lawyers have always been subject to the MCDCA, this new ruling means that MCDCA claims against lawyers are now subject to the fee shifting provisions of the MCPA, which deems a violation of the MCDCA to be a violation of the MCPA.

In carving out this broad exception to the MCPA’s professional services exemption, the Court explained that the law firm/ appellant employs paralegals who primarily contact consumers about debts and, for that reason, obtained a debt collection license under the Maryland Collection Agency Licensing Act. The Court further focused on the fact that the firm sent unsigned letters to the consumer that only identified the sender as the law firm. The Court also stresses that most of the communications with the consumer were with the firm’s paralegal, including demands that the consumer pay thousands of dollars of fines claimed by the HOA for parking a truck on the homeowner’s driveway and for storing landscaping business equipment on the property. The total fines sought which exceeded the delinquent monthly assessments.

The Court was careful to explain that an attorney who files a legal action to collect a debt is engaged in “professional services” and that the law firm may be exempt from the MCPA “for any deceptive or unfair trade practices arising from such professional services.” (Slip op. at p.29, n.7)  However, the Court held that a debt collection attorney’s client could potentially be vicariously liable for the lawyer’s conduct, even when undertaken in the context of litigation, explaining that “we have held that where an agent has immunity, the principal does not have immunity simply because the agent has immunity; the principal must establish an independent basis to receive the benefit of the immunity” (Slip op. at 44)

All Maryland collection attorneys should carefully study this ruling and consider its impact on present collection practices, particularly where the lawyer’s client may be held vicariously liable for the attorney’s conduct.

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